That has to be the main conclusion after a High Court
judgement that freed Nation magazine
editor, Bheki Makhubu and human rights lawyer Thulani Maseko from jail on Sunday (6 April
2014).
The two men had been sent
to jail on remand to await trial on contempt of court charges. This
followed publication
of articles in the Nation
that were critical of CJ Ramodibedi.
Makhubu and Maseko went to the Swazi High Court to demand
their release because they had illegally been arrested and sent to jail. They
argued that CJ Ramodibedi had unlawfully issued a summons for their arrest and
then heard the case behind closed doors in chambers, without lawyers present.
They argued that he had no power to send them to jail and that no law officer
had requested they be imprisoned.
High Court Judge Mumcy Dlamini agreed with them and in a judgement
that took her less than a minute to read out, she released the men. They had
been in jail for 20 days.
In her
written judgement, Dlamini said that CJ Ramodibedi had
sent the men to jail without hearing arguments or submissions why they should
not be.
She added that the law in Swaziland stated that it
was a magistrate’s job to issue arrest warrants.
She said the affidavits used to support the warrant
of arrest were ‘incompetent in law’ because they were raised by the Chief
Justice’s clerk, who was representing the Chief Justice. The Chief Justice claimed
to be injured by the contents of the articles the two accused men wrote.
Judge Dlamini said, ‘A person attesting an affidavit must be completely objective and have no interest of any kind
in the contents or input of that affidavit.’
She went on to say that the hearing should not have been heard in
the Chief Justice’s chambers.
‘A matter of such magnitude viz.
incarceration of persons ought to have been deliberated
fully in an open court.’
Dlamini added that she did not think Chief Justice Ramodibedi
would have
issued the arrest warrant and acted the way he did if he had known these
things.
Which begs these questions: does the Chief Justice of Swaziland
not know basic law, or is it that he knows the law, but chooses not to apply it
to his critics?
See also
AMBASSADORS SUPPORT JAILED
WRITERS
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