MISA-Swaziland (Mbabane)

Swaziland - (Possible) Landmark Free Speech Ruling to Be Handed Down Today

press release

If you think you're having a tough day, spare a thought for Bheki Makhubu, a prominent Swazi journalist currently in jail for writing an opinion piece in which he criticises the judiciary while calling for the rule of law to be respected and the constitution to be upheld.

Makhubu, editor of monthly magazine The Nation, and Thulani Maskeo, human rights lawyer and columnist for The Nation, have been behind bars at Swaziland's Sidwashini prison - just north of the capital Mbabane - for over 70 days.

Makhubu was charged for an article he wrote in the February 2014 edition of the Nation, while Maseko's charge relates to an opinion piece he wrote in the March 2014 edition.

In his article Maseko makes an impassioned plea for freedom while calling on the judiciary to uphold the rule of law. The courts, however, charged both men with criminal contempt.

Landmark ruling on free speech

However, today's landmark ruling in the country's Supreme Court, which acts as the Court of Appeal, does not relate to current contempt charge faced by Makhubu and Maseko Observers are split on whether this ruling will make a difference to future free speech cases in Swaziland, though many believe it could influence the outcome of the current trial involving both Makhubu and Maseko.

The ruling today marks the end of a saga that has dragged on for several years.

The High Court of Swaziland on April 17 2013 sentenced Makhubu to a fine of US$20,000 or, if the fine was not paid within three days, two years imprisonment. The sentence was based on comments made in the Nation by Makhubu about controversial Chief Justice Michael M. Ramodibedi in 2009 and 2010.

The judgment was handed down more than a year after the case was heard, in February 2012.

Makhubu's legal team lodged an appeal within the three day deadline, staying the judgment until an appeal hearing.

That appeal at the Supreme/Appeal Court was heard last Friday 23 May.

Daily newspaper the Swazi Observer reported on the hearing: "South African top Advocate Alexandra Freund has defended The Nation Magazine Editor Bheki Makhubu, claiming he was barely criticising the judiciary not scandalising it."

The report continued: "The advocate said anyone who saw something wrong and rightly criticised it was not in contempt of court. He highlighted that in the case of Makhubu, there was nothing wrong as criticising could be made in strong statements or harsh words."

Advocate Freund noted that it was surprising that the Attorney General prosecuted the case back in February 2012.

Freund submitted that "the case was not under the jurisdiction of the attorney general but was supposed to be prosecuted by the Director of Public Prosecution", said the Swazi Observer.

During the appeal hearing last Friday, said the media report: "Attorney General Majahenkhaba Dlamini confirmed that criticism was not wrong but the language used to do so was to be selected.

"Dlamini, who was representing the state in the matter, highlighted that even if the reason to criticise was there, the language used must be respectful in order to be deemed criticism.

The judgement in this matter - a case that many consider could be a landmark ruling for free speech in the land-locked kingdom -- is expected to be handed down this morning.

More court to come

After hearing this judgement this morning, Makhubu will be transported under heavy security to Swaziland's High Court where he and his co-accused, Thulani Maseko, will take their familiar positions in the dock to continue following their current contempt of court trial.

In a confusing twist, it was expected that Makhubu and Maskeo would have to face another hearing - related to this current contempt trial involving their articles from earlier this year - because Chief Justice Michael Ramodibedi is appealing their short release from prison on April 9.

Makhubu and Maseko were released by high court judge Mumcy Dlamini on April after she found their initial arrest warrants, which were issued by the chief justice, were unlawful and irregular. It is unclear whether this appeal brought by the chief justice will be heard during this current session of the Supreme/Appeal Court.

In Reporters Without Borders 2014 press freedom index Swaziland was ranked 156th out of 180 countries.

Freedom House, a global rights body, ranked Swaziland 171st out of 197 countries in their 2014 freedom of the press report, adding that Swaziland is categorised in the 'not free' nations.

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