The trial of human rights attorney Thulani Rudolf Maseko and journalist Bheki Themba Mkhubu concluded at the High Court of Swaziland today.
The marathon contempt of Court trial of renowned human rights attorney Thulani Rudolf Maseko and veteran journalist Bheki Themba Mkhubu has been concluded at the High Court of Swaziland today, judgment was reserved until further notice. Maseko, a Trade Union Congress of Swaziland counsel is also a columnist to a monthly publication The Nation magazine, wherein Mr. Mkhubu is an editor of. The trial was presided over by a newly appointed Judge Mpendulo Simelane. Legality of Simelane’s appointment is being challenged by the Law Society of Swaziland, in that it is one that was irregular and unconstitutional. The crime of the duo is premised on published articles on February and March 2014 issue of the aforesaid publication. The articles were critical of the embattled Swazi chief justice Micheal Ramodibedi (Makhulu baas) on mannerism he caused for an arrest warrant and subsequently remanded to jail a chief inspector Bhantshana Gwebu who heads vehicles anti abuse department under ministry of public works and transport.
The trial of Thulani and Bheki manifested in a way and procedure that was unheard of. Judge Mumcy freed the two on an April 4th 2014 judgment; she ruled that their arrest was one that was unconstitutional, unlawful and irregular. The chief justice filed an appeal the following day. Their liberty was short-lived when Judge Mpendulo insisted to continue with trial albeit the April 4th 2014 declaratory ruling. The judge found that since an appeal has been noted, such a stride renders judge Dlamini’s ruling suspended as such he ordered re-arrest of the two and consequently continuation of trial. Before the re-arrest was effected by police the accused persons challenged Judge Mpendulo’s order by noting an appeal which effectively meant that Judge Mpendulo order be stayed pending determination of its validity by the Appeal Court. Surprisingly this principle didn’t apply to Judge Mpendulo’s mind this time around. The defense team decried that the judge conduct effectively meant ‘’the law of the morning, wasn’t the law of the afternoon’’ but Judge couldn’t warrant that an ear.
The level of hostility of the Judge towards defense counsels and accused persons was at shocking levels. Simelane timeously called defense consels by their surnames and repeatedly interject them when making submissions ordering them to stop repeating themselves. On the other hand the Judge would address the crown counsel as ‘’honourable DPP’’. Re-arrests were effected and the judge ordered that trial must continue notwithstanding the noted appeals. This again was unheard. One case which pend at both superior Court and a lower Court simultaneously.
Independence and Authoritative
Defense legal team, advocate Lucas Maziya and Senior Human Rights Attorney Mandla Mkhwanazi, in closing arguments they strongly averred in that ordinarily contempt of Court charges must only apply to an independent and authoritative judiciary. They subsequently held that that of Swaziland cannot under any little of doubt be described as such.
In non independency of the judiciary; defense counsels averred that Swaziland’s head of the judiciary chief justice has openly declared his undying support for current system of governance in Swaziland and that he shall ensure regime change is resisted at all costs. The defense lamented this that it seriously offends the fundamental principle on doctrine of separation of powers and places the judiciary’s independence in shambles. The defense further decried that judges’ appointment criteria normally fails to meet the minimal standards of transparency, reasonableness and fairness. That further aggravates and or undermines the independence of the judiciary and invariable renders it to be an extension of the executive. Thulani in his defense statement he disclosed ‘’The judiciary has never been so executive minded than under the leadership of Makhulu baas’’
In non authoritative leg; the defense recounted that the crown flouted Court orders. Among others is that the Court ordered the state to retract an infamousNovember 28th 2002 statement and subsequent implementation of flouted Court orders. Government succinctly indicated that it shall not comply to those orders. That ensued a calamitous judicial crisis see these UN and Amnesty International links
To date neither Court orders were implemented nor was the said statement was retracted. The defense wondered in that the very Courts continue to entertain crown applications to the Courts that are in furtherance of its interest. In no way such Courts can be said to be authoritative in Swaziland advocate Maziya argued. Over and above the defense reiterated that the criticism by accused persons befitted the irregular actions of the chief justice. And further sternly argued arrest of the accused persons were unwarranted. Appropriately avenue would have been a lawsuit if the chief justice felt unfairly criticized. That would have passed the test to determine if indeed he has a good name to protect, in light of that a highest Lesotho Court found that the chief justice no good name to protect unless he is cleared by impeachment proceedings to which he couldn’t await. He resigned.
In closing its case today the crown represented by Director of Public Prosecution Mr. Nkosinathi Maseko he pleaded with the Court in that since the crown case has been sufficiently proven in so far as it relates to commission of the offenses, accused persons must be subsequently found guilty as charged.
The two incarcerated human rights defenders are long standing government critics who stood their ground unshakably over the years. It is not the first they are subjected to the prosecution wrath. Thulani discarded the system of governance from as early as his university days whilst studying law. He fearlessly furthered his frame of conscience in his celebrated written defense statement that was punctuated by global icons which include but not limited to Mandela, Martin Luther King jnr and Albert Luthuli he read from the dock. Thulani found this trial to be one that is ‘’extraordinary…and politically engineered’’ In his statement he did not only defended himself and called for democratic reforms in Swaziland but he further unpacked serious mal-governance issues, raping of lady justice, contempt directed to the Swazi peoples by those in power, failure of leadership in Swaziland, violation of country’s constitution among other aspects which informed his prosecution per his assertion. ‘’…I insist am not guilty but the leadership of Swaziland, jointly, collectively and severally should be in the dock for contempt of the people…the issue is about the abuse of Courts to silence dissenting voices in order to suppress aspirations for democratic change…’’
The crown in presenting its case, in summation, it sent a loud message to the Swazi Nation in that a persons and or media in general must not only report on court pending cases but they should neither question nor report in a manner that is critical of the integrity of the Courts and or judicial officers no matter how substantive and factual the criticism may be. Invariable the crown calls for total mute of the Swazi nation in matters that relates to the judiciary and or judicial officers thereof. Any critic that questions and or comments on conduct of judicial officers and or judicial administration risks being held in Contempt of Court. Ironically, the crown made persistent reference to apartheid era case law during the trial and that Swaziland’s law is much largely reliant to that of South Africa. This very principle failed to fall within the thinking margins of the crown in that South African Courts have since migrated from the sub judice principle. This has manifested itself in the ongoing trial of Mr. Oscar Pristorius wherein the Court ruled that media may cover the trial.
Thulani is a democracy enlightened attorney having been admitted as of November 19th 1999. He has exceptionally made a name for himself on human rights advocacy and encountered formidable hardships in his career with unwavering resilience. He is one of the pivotal founding members of Lawyers for Human Rights Swaziland. Maseko hold LLM in Human Rights and Democratization in Africa from the Center for Human Rights Pretoria. He is also a beneficiary of Hurbet Humphery fellowship from Washington College of Law. He was awarded among others, the Vera Chirwa in 2012 as well as OSISA recognition for his outstanding work in human rights litigation in Swaziland.
To suggest he is an itching thorn to the regime’s flesh may be an understatement. In about his arrest he had paid a courtesy visit to me in office. His main cause was to lodge a Court application to challenge and or nullify repressive legislations in Swaziland which include the public order act of 1963 on basis that it offends the bill of rights guaranteed in the country’s constitution and international law among other instruments to which Swaziland is a State party to and she rectified them. TR, as he is affectionately known. Is indeed a sacrificial leader of a rare calibre and he remains an uncommon gem of social justice of our times.
– Sticks Nkambule is ITF SADC & Lusofone Coordinator
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