17 September 2012

South Africa: 85 Years for a Crime He Did Not Commit

Photo: Darron Raw
King Mswati III, middle, with senior princes and warriors whilst at the annual Umhlanga Reed Dance. Amos Mbedzi's crimes allegedly occurred in the context of an attempt to place explosives under a bridge near important Swazi government and royal buildings - part of an ostensible plan by an opposition group to overthrow the current absolute monachy.


South Africans should know that as their government contemplates extending an economic lifeline to Swaziland's profligate king and court, a South African man is being left to rot in Swaziland's jails. Last month, the Swazi High Court convicted South African, Amos Mbulaheni Mbedzi, of sedition, murder, unlawful possession of explosives and immigration offences - on the most flimsy 'evidence'. Indeed, the real crime has surely been perpetrated not by Mbedzi but by the court - and Swaziland's 'justice system' - against him. Especially now that he has been sentenced to 85 years in prison.

Mbedzi's crimes allegedly occurred in the context of an attempt to place explosives under a bridge near important Swazi government and royal buildings - part of an ostensible plan by an opposition group to overthrow the current absolute monachy. Two men, also alleged to have been party to this plan - a Swazi citizen, Musa Dlamini, and another South African, Jack Govender - were killed as a result - it was claimed - of an error while attempting to assemble the explosives. It is their deaths for which Mbedzi was convicted of murder.

Yet, there was little real evidence to refute Mbedzi's defence that he was not party to any criminal plan - that he had no knowledge of the explosives; that he understood that the car in which he, Dlamini and Govender were travelling in had stopped under the bridge in order to collect another colleague; and that he had left the car to relieve himself and was some distance away when the vehicle exploded although still sufficiently near that he was injured.

At best, the state was able to point to some cell phone communication - none of it particularly incriminating in relation to the accused and certainly not enough to satisfy the standard of guilt beyond a reasonable doubt. The state realised this and reverted to its standard tactics of trying to establish guilt by pointing to inflammatory material. In this case, the prosecution maintained that a document titled 'Top Secret' was found in Mbedzi's possession when he was located at a nearby hospital after the explosion.

That document detailed apparent plans by the People's Democratic Movement (PUDEMO), a banned political party in Swaziland, to violently topple Swaziland's current regime. But it defies credibility that anyone involved in such plans would produce such a document, let alone carry the document aorund at the time of execution of the plan. However, what is beyond doubt is that possession of the document - assuming this is even true of Mbedzi - in no way establishes his guilt in relation to the particular explosion that occurred.

The much more probable explanation for how Mbedzi came to be in 'possession' of the document would have likely been disclosed had the court scrutinised the police's actions and considered their conduct in the context of other similar cases involving those deemed to be terrorists by Swazi authorities.

In 2006, 16 PUDEMO members were brought to court, accused of orchestrating a series of fire-bombings against the government. The state insisted that as they were charged with treason they should be denied bail and detained indefinitely. When the accused were eventually brought to court, several were bloodied and beaten, having been obviously mistreated in police custody.

The state argued that that was where they should remain, without access to medical treatment. And the only evidence that the state had to substantiate its charges? Photocopied documents that it alleged had been produced and distributed by the accused. As the judge then remarked, there was "not one sentence [before him] as to how these pamphlets came to be filed or if any of the applicants are connected to those pamphlets."

In Mbedzi's case, the state also placed great reliance on the fact that the accused had written to the South African High Commission asking that it forward a letter from Mbedzi to Swaziland's King Mswati apologising for the disturbance caused and asking that he be granted reprieve. He also asked that the High Commission to facilitate an offering of livestock to the King from a delegation of his family members.

That letter together with a subsequent letter written by Mbedzi to prison authorities denouncing the lack of response from the High Commission and requesting their assistance were said to establish Mbedzi's guilt. But these letters point to nothing so much as a desperate man willing to entertain any possibility of release.

While the judgment at no point demonstrates an inclination on the part of the judge to seriously weigh the testimony of Mbedzi, it isn't able to entirely omit indication that Mbedzi has been subjected to severe ill-treatment during his detention. Police authorities insisted to the court that Mbedzi's letters were written without coercion despite his being kept in solitary confinement - not permitted access to the outdoors or sunlight as other inmates were. But this, said the police, was for his own good so that his injuries might better heal.

Given that torture is fairly routine in Swaziland's police cells and that there have been several unexplained deaths in detention, a claim by the same police to be keeping a detainee in solitary confinement for "his own health" could be accepted as genuine only by the most credulous, uninformed court or by one determined to overlook Swaziland's record of police brutality.

Against this attitude of the court, it seems almost irrelevant to point out that the judgment dispenses with almost all the conventions of judgement writing, and indeed the very process of adjudication. There is almost no attempt to identify the discrete elements of the crimes charged, the evidence that must be established to prove those elements, or which of the component parts of the evidence and testimony placed before the courts satisfies these different elements. There is almost no weighing of the evidence against the standards of proof required to secure a conviction. Instead there is an undifferentiated, disorganised regurgitation of some of the testimony put to the court.

It doesn't meet the standard of a fair trial. It isn't the rule of law. In Swaziland, the principle has been turned on its head. The courts in Swaziland don't generally check the abuses of Swaziland's authorities; they promote them.

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