IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Criminal Case No: 120/14
In the matter between
REX
Versus
THE NATION MAGAZINE 1ST ACCUSED
BHEKI MAKHUBU 2NDACCUSED
SWAZILAND INDEPENDENT
PUBLISHERS (PTY) LTD 3RD ACCUSED
THULANI RUDOLF MASEKO 4TH ACCUSED
Neutral citation: Rex v The Nation Magazine & 3 Others (120/14) [2014] SZHC 152 (17 July 2014)
Coram: M. S. SIMELANE J
Heard: 14-30 April 2014, 05-28 May 2014,
2-10 June 2014 and 1-2 July 2014
Delivered: 17 July 2014
Summary: Criminal law – Contempt of Court – what constitutes – Contempt of Court in relation to pending criminal matter – interference with the administration of justice – Section 24 of the Constitution - irrelevant evidence.
SIMELANE J
[1] All four (4) Accused persons are charged on two counts of Contempt of Court. The first Accused is a Magazine, a monthly publication published by the third Accused, Swaziland Independent Publishers (Pty) Ltd, a company carrying on the business of amongst others of publishing the first Accused. The second Accused is the editor of the first Accused and a co-director of the third Accused. The fourth Accused is a contributing writer in the Nation Magazine as well as an admitted attorney in Swaziland.
[2] The Accused persons are charged as follows:-
“COUNT ONE
Accused 1, 2 and 3 are guilty of the crime of CONTEMPT OF COURT
In that upon or about the month of February 2014 and at or near Mbabane area in the Hhohho Region, the said accused each or all of them acting jointly in furtherance of a common purpose, did write and publish an article entitled “Speaking my mind” about the case which was first dealt with before the Chief Justice His Lordship Justice Ramodibedi of THE KING VERSUS BHANTSHANA VINCENT GWEBU HIGH COURT CASE NO. 25/2014, a criminal matter currently pending before the High Court of Swaziland and therefore sub judice, which article’s passages are quoted:-
(a) ‘Like Caiaphus, Ntate Justice Ramodibedi seems to have chosen to use his higher station in life to bully those in a weaker position as a means to consolidate his power. Like Caiaphus, Ntate Justice Ramodibedi seems to be in a path to create his legacy by punishing the small man so that he can sleep easy at night well knowing that he has sent a message to all who dare cross him that they will be put in their right place. Let us not forget that Caiaphus was not only the high priest of Judea. He was the chief justice of all Jewish law and had only the immense power to pass judgment on anyone among his people who transgressed the law. Ditto Ntate Justice Ramodibedi in Swaziland.’
(b) ‘When this lowly public servant from Bulunga appeared before him on Monday after a warrant for his arrest had been issued, Gwebu was denied the right to legal representation because, Ntate Justice Ramodibedi is reported to have said, the lawyer was not there when the car was impounded at the weekend.’
(c) ‘Like Caiaphus, our Chief Justice “massaged” the law to suit his own agenda.’
(d) ‘What is incredible about the similarities between Caiaphus and Ntate Justice Ramodibedi is that both men had willing servants to help them break the law.’
and did thereby unlawfully and intentionally violate the dignity, repute or authority of the said Court before which the matter is pending, and thereby commit the crime of CONTEMPT OF COURT.
COUNT TWO
Accused 1, 2, 3 and 4 are guilty of the crime of CONTEMPT OF COURT.
In that upon or about the month of March 2014 and at or near Mbabane area in the Hhohho Region, the said accused each or all of them acting jointly and in furtherance of a common purpose, did write and publish an article entitled “Where the law has no place” about the case which was first dealt with before the Chief Justice His Lordship Justice Ramodibedi of THE KING VERSUS BHANTSHANA VINCENT GWEBU HIGH COURT CASE NO. 25/2014, a criminal matter currently pending before the High Court of Swaziland and therefore sub judice, which article’s passages are quoted:-
(a) ‘The arrest of Bhantshana Gwebu early in the year is a demonstration of how corrupt the power system has become in this country.’
(b) ‘We should be deeply concerned about such conduct displayed by the head of the judiciary in the country. Such conduct deprives the court of its moral authority; it is a demonstration of moral bankruptcy. A judiciary that is morally bankrupt cannot dispense justice without fear or favour as the oath of the office dictates.’
(c) ‘Many will say that what we saw is nothing but a travesty of justice in its highest form.’
(d) ‘In more ways than one, this was a repeat of the Justice Thomas Masuku kangaroo process where the Chief Justice was prosecutor, witness and judge in his own cause.’
(e) ‘It would appear as some suggest, that Gwebu had to be “dealt with” for sins he committed in the past, confiscating cars belonging to the powerful, including the Chief Justice himself. It is such perceptions that make people lose faith in institutions of power, when it appears that such institutions are used to settle personal scores at the expense of justice and fairness.’
and did thereby unlawfully and intentionally violate the dignity, repute or authority of the said Court before which the matter is pending, and thereby commit the crime of CONTEMPT OF COURT.”
[3] All four (4) Accused pleaded not guilty to both counts and also raised the plea of lis pendis. The pleas were confirmed by the defence team.
[4] In support of its case, the Crown paraded two (2) witnesses.
[5] It is not in issue that the Accused persons are the authors of the articles complained of.
[6] PW1 was Msebe Malinga, the Acting Registrar of Companies. The crux of his evidence was that Accused 3 is indeed a company duly registered in terms of the company laws of Swaziland. His evidence in this regard was uncontroverted. He further handed in Court Exhibit A which is the file R7/12064 which contains the registration documents for Swaziland Independent Publishers (Pty) Ltd, (Accused 3).
[7] It transpired from his evidence that he recorded a statement with the police in his office. This was made an issue by the defence arguing that statements are recorded at the police station. Another issue raised by the defence on this witness was that he recorded the statement on the 27th March 2014 when the Accused persons had already been arrested on the 17th March 2014. The defence team argued that the Accused were arrested to be investigated not that the arrests were pursuant to some investigations.
[8] PW2 was Ms Banele Ngcamphalala, the Deputy Supreme Court Registrar who was Acting High Court Registrar at the commission of the offences. She informed Court that she is aware that there is a pending case of Rex Vs Bhantshana Vincent Gwebu High Court Case No. 25/2014. She further told Court that the matter is still awaiting setting of the pre-trial conference date and allocation of a trial date. She proceeded and handed in Court the Indictment for the said case and same was accordingly admitted in evidence and marked Exhibit B.
[9] PW2 further told Court that she read both publications of The Nation, that is the February 2014 issue and the March 2014 issue respectively. She opined that both issues made reference to the Bhantshana case which was still sub judice and stated that a matter that is sub judice cannot be discussed until it is finalized. PW2 handed in Court the February 2014 and March 2014 publications of The Nation Magazine which were respectively admitted in evidence and marked Exhibit C and Exhibit D. PW2 was cross-examined extensively by the defence for some days.
[10] The defence put it to PW2 that the writers were merely putting across their opinion. They further argued that the Accused were at liberty to write about the case of Bhantshana because they were writing about things that had already transpired in the Chief Justice’s Chambers on Bhantshana’s remand. She maintained that the articles, read in context, were contemptuous as they touched on the integrity of the Courts.
[11] The defence suggested to the witness PW2 that there is nothing contemptuous about criticizing the person of the Chief Justice or any Judge of the High Court.
[12] It was further argued by the defence that it was legally wrong for the witness PW 2 to commission the affidavits by police officers which resulted in the issuance of the Warrants of Arrests for the Accused in the instant matter because she is part of the judiciary and that she works closely with the Chief Justice. The witness maintained that she did not see anything unlawful with this.
[13] It was put to PW2 that it was wrong for the Chief Justice not to afford Bhantshana the right to legal representation. PW2 replied that it was wrong for the Accused persons to write about this because the authors were not there when Bhantshana was remanded.
[14] It was also put to PW2 that it was wrong for the Chief Justice to issue the Warrants of arrests for the Accused persons in the instant matter because the Chief Justice is the subject of the very articles complained of. PW2 insisted that there was nothing wrong and unlawful for the Chief Justice to issue the warrants as the articles touched on the image, dignity and integrity of the Courts, of which the Chief Justice is the head.
[15] The defence also put it to PW2 that the Chief Justice remanded the Accused in custody not withstanding that no prosecutor had applied that the Accused be remanded in custody.
[16] PW2 replied that even if there was no such application by the Crown the Chief Justice was at liberty to issue such warrants considering that contempt of court proceedings are “sue generis”, hence the Court can adopt any procedure suitable to the Court. The Court determines the procedure to adopt. The defence further argued that the rules of natural justice must still apply even in contempt of Court proceedings and PW2 replied that the rules of natural justice were adhered to.
[17] The defence further argued that the Accused persons were denied their right to legal representation. This was denied by PW2 stating that the Accused were represented by attorneys when they appeared before the Chief Justice.
[18] It was also argued by the defence that the judiciary should have asked for a retraction if what they reported to have happened in the Chief Justice’s Chambers when Bhantshana was remanded was not true. PW2 stated that the judiciary had a right to decide on how best to deal with the issue of the publications.
[19] At the close of the Crown’s case the Accused moved an application in terms of Sections 174 (4) of the Criminal Procedure and Evidence Act 67 of 1938 (as amended). This application was vigorously opposed by the Crown. It was my considered view, as per my ruling therein, that there was evidence upon which a reasonable person might convict and that the Crown had made a prima facie case. The Accused persons were all called to their defence.
[20] The first defence witness was one Bhantshana Vincent Gwebu. He told the Court that he is employed by the Swaziland Government under the Anti-Abuse Unit. He told Court about his arrest and what he alleges transpired in the Chief Justice’s Chambers on his first appearance in Court. He told Court that on his appearance before the Chief Justice his rights to legal representation were not explained to him. He also told the Court that the prosecutor did not have a charge sheet when he was remanded. He told the Court that his lawyer was locked out of the Chief Justice’s Chambers.
[21] It is important that I observe here that Bhantshana’s evidence that his lawyer was locked out of the Chief Justice’s Chambers was contradicted by his lawyer, Mr Machawe Sithole, who testified in this case as DW3. Mr Sithole categorically told the Court that he was not locked out of the Chief Justice’s Chambers but was waiting in the Registrar’s office to be directed to where the matter was to be heard. He said that whilst at the Registrar’s office he learnt that the matter was to be heard by the Chief Justice in his Chambers. Mr Sithole further stated that he did not bother going to the Chief Justice’s Chambers as he expected to be escorted there.
[22] The Accused had reported that Bhantshana’s lawyer was locked out of the Chief Justice’s Chambers. They launched a serious attack on the Chief Justice and the Judiciary on this score as their articles reveal. In my view the contradiction, in the evidence of Bhantshana and his lawyer on this material issue which formed the crucial basis of the vociferous assault by the Accused, on not only the Chief Justice but the entire Judiciary, renders their evidence precarious and unworthy of belief. I refuse to rely on their evidence. I reject it.
[23] I should interpose at this stage and state that I take judicial notice that the contention by the Accused that Bhantshana was denied his right to legal representation is far-fetched. This, I say because I was in attendance when the said Bhantshana was remanded. That I was in attendance is confirmed by the defence. It is an uncontroverted fact. I was there in my capacity as the then Registrar of the High Court hence I was part of the coram. This, I say without getting into the merits of that matter. I however believe that I have a right to take judicial notice of what transpired in that court. And I so do.
[24] I thus find it absurd for anyone to go out there and mislead the public on what allegedly transpired in that Court when the very person saying this was not in attendance. It is of paramount importance for journalists to verify what they write about. No one has the right to attack a judge or the Courts under the disguise of the right of freedom of expression. Inasmuch as this is a right enshrined in the Constitution, the Constitution itself makes the right not absolute. I will come to this issue in a moment.
[25] The defence also called the evidence of DW2, Quinton Dlamini. He told the Court that he was at the High Court when Bhantshana made his first appearance before the Chief Justice. He told Court that they were not allowed entry in the Chief Justice’s Chambers. He told Court that he is the President of NAPSAWU and was in Court because Bhantshana Gwebu is their member. He further informed the Court that the NAPSAWU constitution provides that they should engage legal services for any of their members who was arrested. When tasked to produce evidence to that effect, DW2 failed to produce a copy of NAPSAWU constitution that mandated him to get involved in such matters. He produced the constitution for SNACS and I disregarded same as he did not tell the Court about SNACS and the relationship of SNACS with NAPSAWU. I cannot speculate. DW2 as he claims to be the President had to explain this.
[26] Futhermore, I consider DW2’s evidence as to what transpired in the Chief Justice’s Chambers hearsay evidence. He was merely telling the Court about what he heard from Bhantshana to have been what transpired in the Chief Justice’s Chambers, otherwise, he admitted that he was not in Court when the matter was dealt with. DW2 further failed to provide proof of subscriptions paid to NAPSAWU by Bhantshana to qualify Bhantshana as such member of NAPSAWU. Before me there is no proof that when he was in Court he had come for a member of the said union. The Court is not expected to conjecture. I reject his evidence.
[27] DW4 was the fourth Accused Thulani Maseko. When he was called to his defence he elected to present unsworn evidence. It is trite that unsworn statements carry less weight than sworn statements. This is so because the veracity of unsworn statements is not tested under cross-examination. No reasonable explanation as required of an Accused was advanced by the Accused vis-a vis the charges he is facing before this court. I find that all he said before Court is of no relevance to the charges he is facing. He was just playing to the gallery and talking politics. As an attorney he should know very well what constitutes a defence instead of engaging in gimmicks.
[28] DW4 should be able to distinguish a Court room from a political forum. In this country there are political structures in place for him to say what he said in Court but certainly not in the Court room. I consequently regard his evidence as irrelevant.
[29] To demonstrate the irrelevance of his statement, I will quote from page 2 of his unsworn written submissions, which he read into the record.
“Like many present in court today, I come from very humble beginnings raised by a single great mother with the help of neighbours; I come from the little valleys and mountains of Ka-Luhleko area. I happen to be a member of the Maseko royal house hold. As I speak my people had been denied their traditional and customary right of installing a chief of their own free choice as it happened with the people of Macetjeni and Kamkhweli, and other areas. Chiefs are being forcefully imposed on us so as to serve narrow personal and political interests, at the expense of the people and communities. Those who pretend to be defenders of Swazi Law and Custom are in fact, its greatest purveyors.”
[30] Furthermore on page 24 of the said unsworn written statement, he stated as follows:-
“(1) In the short term, in order to restore the integrity of the judiciary, the people of Swaziland have said it loud and clear that the Chief Justice Michael Ramodibedi be immediately suspended and removed from the office of Chief Justice of the Kingdon of Swaziland. His removal should obviously be after following due process in terms of section 158 as read in light of section 21 of the Constitution. What he refused to afford Mr. Justice Thomas Masuku by law, should be afforded to him by law. In any event section 157 (1) of the tinkhundla Constitution stipulates that a “person who is not a citizen of Swaziland shall not be appointed as Justice of a superior court after seven years from the commencement of this Constitution.” But the Judicial Service
Commission shamefully tells us that Swazis are ill-qualified, ill-equipped and incompetent for the position of Chief Justice. This is an insult to the members of the legal profession and the Swazi Nation.
(2) The people’s organs of power, that is, political parties together with organized civil society as well as individual natives of this land, have stated without ambiguity that Swaziland must move forward towards a truly democratic state, with multiparty system as a basis for the formation of government. Sir, the modalities and details of how this is to be achieved must be, and will be negotiated by all interested parties, on agreed terms on the basis of full equality, at a National Convention. The SADC-Parliamentary Forum has suggested and recommended as such.
(3) This obviously calls for a review of the 2005 Constitution as long recommended by the Commonwealth Expert Team on election observation in 2003 and 2008, recently echoed by the African Union through the AU Election Observation Team as well as the SADC Lawyers Association Election Observer Team last year. This will ensure that there is separation of powers and respect of the Rule of Law, an independent judiciary and full respect and enjoyment of all human rights and fundamental freedoms. We deny that the call for a constitutional monarchy is a call to overthrow the monarch in Swaziland. We are calling for a system of government where democratic governance, can and will co-exist with a monarchy whose powers are properly limited by law, under a democratic constitution – so that nobody is above the law, but the law; is the ruler, so as to provide checks and balances. Although we may disagree with the Government under Tinkhundla which is undemocratic we still are His Majesty’s citizens and should be heard.
(4) When all is said and done, a democratic Constitution should lead to the holding of free, fair, credible and genuine democratic elections, giving birth to a people’s democratic government.”
[31] Accused 4’s purported defence is clearly a call for regime change. It is a total defiance campaign against all constitutional structures in the country. It is no defence at all vis a vis the charges he is facing before this court. He unnecessarily attacked the authorities of this country on the appointments of chiefs, appointment of the Prime Minister and the Chief Justice, claiming that these appointments are not constitutional. He was in an endeavour to turn this court into a political platform. I fail to understand why the accused says these appointments are unconstitutional or their relevance to the issues before Court. For ease of reference the Accused’s unsworn statement is annexed to this judgment Marked “A”. A fair translation of the closing remarks, namely, “Amandla!! Aluta Continua!!! Embili ngemzabalazo Embili!!! Phansi nge Tinkhundla Phansi!!.” is forward ever with the struggle. Away with the Tinkhundla system of governance in Swaziland.
[32] The irrelevance of Accused 4’s purported defence to the charges proffered stares this Court in the face in its stark enormity. It cannot be countenanced. I reject it.
[33] The fact that such irrelevant evidence is inadmissible and should be rejected is succinctly captured by Section 222 of the Criminal Procedure and Evidence Act 67 of 1938 (as amended) as follows:-
“222. No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and cannot conduce to prove or disprove any point or fact at issue in the case which is being tried.”
[34] DW5 was Accused 2, Bheki Makhubu. The crux of his defence was that in both publications they made a fair and legitimate criticism of the judiciary. The defence by Accused 2 was that he made a simple analogue of Caiaphus in the bible to the Chief Justice because what the two did is the same. He then quoted from a book entitled “The killing of Jesus”, a history the story of Jesus’s crucifixion as it’s never been told before by Bill O’reilly and Martin Dugard page 195 where the following appears:-
“Caiaphas has seen what happens when political revolt breaks out in the Temple courts and remembers the burning of the Temple porticoes after the death of Herod. He believes Jesus to be a false prophet. Today’s displays truly shows how dangerous Jesus has become.
The threat must be squelched. As the Temple’s High priest and the most powerful Jewish authority in the world, Caiaphas is bound by religious law to take extreme measures against Jesus immediately. “If a prophet or one who foretells by dreams, appears among you and announces to you a sign or wonder.” The book of Deuteronomy reads, “that prophets or dreamer must be put to death for inciting rebellion against the Lord your God.”
Caiaphas knows that Jesus is playing a very clever game by using the crowds as a tool to prevent his arrest. This is a game that Caiaphas plans to win. But to avoid the risk of becoming impure, he must move before sundown on Friday and the start of the Passover.
This is the biggest week of the year for Caiaphas. He has an extraordinary number of obligations administrative tasks to tend to if the Passover celebration is to come off smoothly. Rome is watching him closely, through the eyes of Pontius Pilate, and any failure on the part of Caiaphas during this most vital festival might lead to his dismissal.
Both nothing matters more than silencing Jesus. Time is running out. Passover is in four short days.”
[35] DW5 also argued that Section 24 (2) of the Constitution of Swaziland sanctions them to write as they did.
[36] Now section 24 of the Constitution provides as follows:-
“(1) A person has a right of freedom of expression and opinion.
(2) A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of expression, which includes the freedom of the press and other media, that is to say-
(a) freedom to hold opinions without interference;
(b) freedom to receive ideas and information without interference;
(c) freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons); and
(d) freedom from interference with the correspondence of that person.
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provisions:-
(a) that is reasonably required in the interests of defence, public order public morality or public health.
(b) that is reasonably required for the purpose of
(i) protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings;
(ii) preventing the disclosure of information received in confidence;
(iii) maintaining the authority and independence of the Courts; or
(iv) regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television or any other medium of communication; or
(c) that imposes reasonable restrictions upon public officers,
expect so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in a democratic society.” (Emphasis added).
[37] This section must be read together with Section 139 (3) of the Constitution. This section reads as follows:-
“The superior courts are superior courts of record and have the power to commit for contempt to themselves and all such powers as were vested in a superior court of record immediately before the commencement of this Constitution.”
[37] It is clear to me that Section 24 of the Constitution does not grant an absolute right of freedom of expression. It categorically subjects the rights of freedom of expression to respect for the right of others. It is also obvious that the restrictions placed on maintaining the authority and independence of the Courts are placed because it is in the public interest that the authority and dignity of the Court is maintained.
[38] As Ramodibedi, P observed in Mancienne V Government of Seychelles (10 of 2004) (reported on line under SEYLII) in the Seychelles Court of Appeal at paragraph 33 quotes as follows:-
“In my view, the fundamental importance of the right to freedom of expression and of the role of the press and mass media in protecting such right as primary agents of the dissemination of information and ideas cannot be stressed strongly enough in an open democratic society such as ours. However, one must always bear in mind that the right to freedom of expression is not absolute. Therein lies the test. Indeed it must always be realised that the right to speak includes the right not to speak. But more importantly, the right must obviously be considered in conjunction with other competing rights and values equally necessary in an open democratic society. The court’s task, therefore, in interpreting Article 22 of the Constitution involves balancing all the competing rights and values.”
[39] More to the above the code of Ethics of the Swaziland National Association of Journalists to which Accused 2 stated that he subscribes, though he says it is outdated, provides under article 1 (2) on People’s Rights to information, “A journalist should make adequate inquiries, do cross- checking of facts in order to provide the public with unbiased, accurate, balanced and comprehensive information.”
[40] Article 2 (1) of the same Code of Ethics provides as follows: on Social Responsibility, “In collecting and disseminating information, the journalist shall bear in mind his/her responsibility to the public at large and the various interests in society.”
[41] In my view the Accused persons woefully failed to adhere to their own code of ethics. What the accused persons did by writing on something not factual as I have already demonstrated via the contradictions in the defence as to the allegation that Bhantshana was denied legal representation and his lawyer locked out of the Chief Justice’s Chambers is highly unethical in the journalism profession. This has the potential of setting up the public against the Courts and destroying public confidence in the administration of justice.
[42] Such untruths have the potential of prejudicing the criminal case of Bhantshana Gwebu. It is a clear interference with that case in an attempt that denigrates the dignity of the Courts which founds the offence of Contempt of Court. What the Accused did is an offence called contempt of Court ex facie curie. Contempt of Court is defined by Burchell and Milton as follows:-
“Contempt of Court consists in unlawfully violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it.”
[43] The offence of Contempt of Court is thus a necessary device to protect the dignity and authority of the Court. It would be wrong for the Courts to allow people to pass judgment on matters which are still pending in Court.
[44] In Gallagher v Durack 1985 LCR (Crim) 706 at 713 the Federal Court of Australia found the applicant guilty of contempt of court and sentenced him to three months imprisonment. The applicant was the secretary of a Trade Union and he published a statement that the court had made a decision in their favour because of their industrial action in demonstrating. In justifying his decision Justice Rich at page 44 made the following remarks with which I fully agree:
“...the summary power of punishing contempts of court...exists for the purpose of preventing interferences with the course of justice... Such interference may...arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office. The jurisdiction is not given... for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of courts, as of other institutions, the fullest discussion of their doings so long as that discussion is fairly conducted and is honestly directed to some defined public purpose. The jurisdiction exists in order that the authority of the law as administered in the courts may be established and maintained.”
[45] My view of the fact that the Accused persons were clearly in Contempt is buttressed by the fact that on the face of the articles (February/March 2014), it is clear that findings and or conclusions were made by the authors on the case of Bhantshana Gwebu.
[46] The Accused persons scandalized, insulted and brought to disrepute the dignity and authority of the Chief Justice in the execution of his official duties in connection with Bhantshana Gwebu’s case which is still sub judice.
[47] This is clear from count 1 where the offending article states as follows:-
‘Like Caiaphus Ntate Justice Ramodibedi seems to have chosen to use his higher station in life to bully those in a weaker position as a means to consolidate his power. Like Caiaphus Ntate Justice Ramodibedi seems to be on the path to create his legacy by punishing the small man so that he can sleep easy at night well knowing that he has sent a message to all who dare cross him that they will be put in their place. He goes further to state the following:-
‘Like Caiaphus, our chief justice “massaged” the law to suit his own agenda.’
[48] With regards to the above excerpt I agree entirely with the following analogy by the learned Director of Public Prosecutions in the Crown’s heads of argument.
The above cited extracts read together with the whole of the article insinuated that the Chief Justice had ulterior and personal motives to issue a warrant of apprehension and remand into custody Bhantshana Gwebu i.e. to consolidate his power, to create a legacy and to send a message that those who oppose him will be sent to jail. Such allegations suggested a grave breach of duty by the Chief Justice, in circumstances which were calculated to undermine the public confidence in the courts, particularly the legitimancy of the sub judice criminal proceedings against Bhantshana Gwebu. In the South African case of In Re Mackenzie, 1932-1933 AD 367 the summary thereof states as follows:
‘Where a newspaper published an anonymous letter protesting against a decision of the appellate Division, stating that the Court had given an absurd judgment upon no reasons whatever and insinuating ulterior and personal motives for the judgment other than the reasons advanced by the Court, that Court, acting ex mero moutu issued an order calling upon the editor of the newspaper concerned to show cause why he should not be committed for contempt of Court and on the return day ordered him to publish an apology in terms which had been accepted by the Court and pay a fine of R50.”
[49] Furthermore in the South African case In re Philani (1877), [22] this issue was aptly captured as follows:-
“[22] ...any publications or words which tend, or are calculated, to bring the administration of justice into contempt, amount to a contempt of Court. Now, nothing can have a greater tendency to bring the administration of justice into contempt than to say, or suggest, in a public newspaper, that the Judge of the High Court of this territory, instead of being guided by principle and his conscience, has been guilty of personal favouritism, and allowed himself to be influenced by personal and corrupt motives, in judicially deciding a matter in open Court.”
[50] A reading of the articles also clearly shows that the authors are telling the public that there is no law in our Courts. They also state that there is corruption and no proof of same has been adduced. They portrayed Bhantshana as a hero, when in effect, whether what he did was right or wrong is still to be determined by the Courts as he is facing charges on that matter.
[51] The conduct of the Accused in this regard is clear from the contents of the undisputed article as depicted in count 2 part of which reads as follows:-
“The questions must be asked: for how long will the people of Swaziland be robbed of justice by the very institutions that are enjoined by the Constitution to enforce it? What is the value of the Constitution if it cannot be respected even by those who are called upon to ensure that it is respected and applied? Is the law of any value and meaning to the life of an ordinary person who does not belong to the most powerful and most high in society? It does seem that we are living in the law of the jungle where the less powerful are subject to the whims and feelings of the powerful, rich and privileged.’
At page 34,
‘It is a bang because it is the judiciary that is alleged to have issued the warrant of apprehension, the Chief Justice himself! Bhantshana’s arrest has sent shivers among right thinking members of our society. How could a public officer be arrested for executing his duties as a government employee?’
At page 36
‘As we understand the criminal offence of contempt of court, the person facing it must have the willful intention to undermine the authority of the court and must be aware that the is so undermining such authority of the court. In this case, here is a civil servant employed to monitor the abuse of government vehicles, exercises his powers as such and lands himself in trouble for contempt!’
At page 37
‘It would appear as some suggest, that Gwebu had to be “dealt with” for sins he committed in the past, confiscating cars belonging to the powerful, including the Chief Justice himself.”
[52] It is clear that the Accused not only attacked the dignity and integrity of our Courts but they also portrayed Bhantshana as innocent before his criminal case was even tried. Their conduct has the potential of bringing the administration of justice into disrepute among right thinking members of the society. This is decried by law as Contempt of Court.
“According to P.M.A Hunt, the South African Criminal Law and Procedure Vol. II, potentially prejudicial publications constitute the offence of contempt of court ex facie curiae. See page 196. The writer goes further to give examples of potentially prejudicial publications.
‘Examples of prejudicial publications; theatrical, film, newspaper or magazine comment suggesting that a person is guilty or innocent of the offence charged, or attacking or praising his character; comment on the character, demeanour or credibility of a witness or on the merits of a civil dispute, publication of photograph of the accused where identity may be in issue, publishing during the course of a jury trial a document already ruled by the judge to be in admissible in evidence, exhorting judges to disregard evidence given in the course of proceedings.’
[53] Reference was made by the defence to the famous case of Bridges Vs California 314 U.S. 252 (1941). May I hasten to state that that case is distinguishable from the instant matter in that Contempt of Court is no longer an offence in the United States of America but it is an offence in Swaziland. Both countries have different laws on this issue. The United States of America cannot be used as a bench mark in this circumstance. That country’s case law as cited is clearly inapplicable in casu. I reject it.
[54] The Defence made heavy weather on why the offence of Contempt of Court should be abolished in Swaziland. Obviously after the order of the United States in Bridges Case. That is not my headache. The fact remains that the offence of Contempt of Court which is a Common Law offence still forms part and parcel of the Laws of Swaziland. It is my constitutional duty to uphold it. In my view it is good law as clearly recognized by the South African Constitutional Court in the case of S V Mamabolo, in order to protect the dignity and authority of the Courts in upholding the rule of law. I subscribe to it as enjoined to do so by Section 24(3)(b)(iii) of the Constitution.
[55] The defence also made a hue and cry about the decision of the Supreme Court per Moore JA in the case of Swaziland Independent Publishers (Pty) Ltd and Another v The King Criminal Appeal No. 08/2013.
[56] Their take is that in light of the above decision at best the Accused should have been charged for scandalizing the Courts rather than Contempt of Court.
[57] I beg with respect to differ. This is because the facts of this case are easily distinguishable from the facts of that case. In that case the authors of the impugned publication unilaterally took it upon themselves to vilify and derogate not only the image of the Chief Justice but the entire Judiciary. Of note is that the attacks therein were not in relation to a pending case.
[58] This is not such a case. In casu, the whole attack on the Chief Justice and the Judiciary is predicated on the Bhantshana Gwebu case which is sub judice. The Accused persons sought to interfere with that judicial process. This founds the Contempt of Court.
[59] The Accused persons also argued that they were arrested to be investigated yet procedurally investigations should precede the arrest. Their argument is that the Crown should have concluded investigations before arresting them. That is arguable. In fact, that would be the more prudent course, to avoid a situation where a charge is left hanging over a person’s head, whilst the Director of Public Prosecutions embarks on a long drawn out investigation. However, practice; has demonstrated it beyond disputation, that this course is not always practicable in criminal trials. This is due to the fact that situations may arise where the stage of investigation has revealed enough facts to disclose a reasonable basis that a person has committed an offence, in such a situation, an arrest can be made as part of the criminal process, but must be in accordance with the law and Constitution. It is prudent in such situations, that the fundamental rights of the Accused to a trial be strictly observed and the investigation concluded speedily. We cannot shut our eyes to the reality that in some situations, as here, it may be necessary for the investigating agency to arrest a suspect, as a precautionary measure, to prevent an action that might frustrate the ensuing criminal process, like escaping from the jurisdiction.
[60] It was further submitted by the Accused that the Chief Justice was not executing judicial functions when remanding Bhantshana as he was in Chambers, rather he was doing an administrative function. The argument being that the remand warrant was of no legal force and effect. I disagree with this contention because the Chief Justice is a Judge exercising judicial function in open Court or in Chambers. There is no law precluding him from sitting as a Judge even in Chambers and the orders issued there have the same effect as those issued in open Court. May I hasten to say that all judicial officers do deal with matters in Chambers in all our Courts. This is a norm particularly faced with the infracture challenges in our jurisdiction. It is not extraordinary and unlawful for the Chief Justice or any judicial officer to hear matters at the High Court, either in Court or in Chambers especially at the preliminary stage of cases as here.
[61] The defence team, particularly counsel for the fourth Accused, also argued that the Crown has failed to prove common purpose in that no evidence has been adduced to prove that the Accused acted in furtherance of a common purpose. I reject this contention by the defence on the basis that there is evidence that Accused 3 is the publisher of the Nation Magazine. This is evident further from the testimony of PW2, the defence case presented under oath by Accused 2 and the highlighted area of pages of both magazines in issue. This is found at page 4 of both articles. It is necessary for me to quote same verbatim.
“EDITOR
Bheki Makhubu
ASSISTANT EDITOR
Nimrod Mabuza
SENIOR EDITOR
Mantoe Phakathi
REPORTER
Nkosingiphile Myeni
ADVERTISING
Phindile Nkambule
CONTRIBUTORS
SiphoNkosi-Dlamini, ApheleleMaseko,ThulaniMaseko
PRINTERS
TVAAL Printers
REPRODUCTION
TVAAL Printers
DISTRIBUTORS
Flotsam
PUBLISHERS
Swaziland Independent Publishers (Pty) Ltd
P.O Box 4547, Mbabane
Third Floor, Mbabane House
Mahlokohla Street, Mbabane
Swaziland.
Tel.2404 6611/2404 1480
e-mail:thenation@realnet.co.sz
DISCLAIMER
Views expressed by correspondents do not necessarily reflect those of the editor, publishers or distributors. Although every possible effort is made to ensure accuracy of the material contained in this publication, the publishers, editor, printers or distributors are not liable for any errors, omissions or any effect there from. Copyright reserved.
MISSION STATEMENT
The Nation is Swaziland’s leading independent magazine. Our mission is to build and maintain a sustainable organisation that provides analytical news with relevant information on nation-building and developmental issues to satisfy our clients and readers.”
[62] PW 2 read this portion which became part of the Crown’s case and this evidence remained uncontroverted by the defence. Consequently, I am inclined to agree with the Crown that all four Accused persons acted jointly and severally in the commission of the offences.
[63] The rule of law is meant to benefit everyone. Some journalists have this misconception that just because they have the power of the pen and paper they can say or write anything under the disguise of freedom of expression. This is a fallacy. It would be an unfathomable phenomenon to say that the right to freedom of expression is absolute with regards to our Constitution. There is justification for the restrictions placed by Section 24 of our Constitution on the right to freedom of expression. The object of the restrictions is for maintaining the integrity and dignity of the Courts and this is in the public interest. It would be absurd to allow journalists to write scurrilous articles in the manner the Accused persons did. Such conduct can never be condoned by any right thinking person in our democratic country.
[64] In light of the totality of the foregoing, I find that the Crown has proved its case against the Accused persons beyond reasonable doubt. I find the Accused persons guilty and convict them for the offences as charged in counts 1 and 2 respectively.
M. S. SIMELANE
JUDGE OF THE HIGH COURT
For the Crown : Mr. N. M. Maseko
(The Director of Public Prosecutions)
For the Accused Persons:
Accused No. 1-3: Advocate L. Maziya
Accused No. 4 : Mr. M. Z. Mkhwanazi
ANNEXURE “A”
The failure of leadership in Swaziland: the people are treated with contempt
Statement of Defence
l. Introduction
May it please the Court, I am the fourth accused. I have chosen to make this statement from the dock with the full knowledge that it does not necessarily carry the same legal weight as evidence given in the normal course; that is, testimony given in examination-in chief and under cross examination.
Nevertheless, just as much as His Majesty King Sobhuza II gave careful consideration to the unlawful repeal of the 1968 Independence Constitution on April 12, 1973. I have equally thought long and hard about this. 1 have come to the conclusion that this has been such an extra·ordinary case. To any mind, it has~editself of an extra-ordinary approach. This trial, although based on an alleged contempt of Court offence, seems to me to be politically engineered.
Your Lordship, through this statement, I seek to demonstrate at least five issues. First, I will show the failure of justice by and before this very Court. Second, I insist that the Chief Justice, Michael Ramodibedi is morally bankrupt. He has not only undermined the integrity and dignity of the judiciary in our country; he has also destroyed its independence and accountability, to such an extent that it has lost public trust, without which it cannot function. I say that we had to comment and write about Bantshana Gwebu's case because; as Martin Luther King Jr tells us from his "Letter from Birminghnm Jaif' that “ We are caught ilt011 inescapable network of mutuality, tied ill a single garment of destiny. Whatever affects one directly affects all indirectly." An injury to one is an injury to all. Third, I will respectfully submit that the people of Swaziland are treated with disgusting disregard and utter contempt. Fourth, I will address a general failure of leadership at all levels in our society. Fifth and lastly, I will cry out for the need to find consensus around a way forward so that, as one people we can face the challenges facing us together, peacefully; in a new spirit of patriotism an abiding faith.
Sir, President Barack Obama, the inspirational leader of our time says "JJ'E? worship an awesome God in the South ... " Elsewhere he says "/am rooted in the Christian faith., I do want to say that we also worship an awesome and magnificent God in prison. There in Room D4, where His Lordship bas all along remanded me, we worship a great God indeed! And a fellow prisoner read from the Holy Book that:
Put on all the armour that God gives you, so that you will be able to stand up against the Devil's evil tricks. For we are not fighting against human beings but against the
wicked spiritual forces in the heavenly world, the rulers, authorities, and cosmic
powers of this dark age. So put on God's armour now! Then when the evil day comes,
you will be able to resist the enemy's attacks; and after fighting to the end, you will
still hold your ground.
The court will note as it did on Thursday April 10, 2014 that I am an attorney of this court, having been admitted to practice as such on November 19, 1999. Like many present in Court today, I come from very humble beginnings raised by a single great mother with the help of neighbours; I come from the little valleys and mountains of Ka-Luhleko area. q happen to be a member of the Maseko Royal Household. As I speak, my people have been denied their traditional and customary right of installing a Chief of their own free choice as it happened with the people of Macetjeni and Kamkhweli, and other areas. Chiefs are being forcefully imposed on us so as to serve narrow personal and political interests, at the expense of the people and communities. Those who pretend to be defenders of Swazi Law and Custom are in fact, its greatest purveyors. During the day of my admission as an attorney I took the oath of practice before the then Registrar of the High Court, Mrs. Thandi Maziya. I said:
I, THULANI RUDOLF MASEKO, do swear that I truly and honestly demean
myself in the practice of an ATTORNEY according to the best of my knowledge and
ability. SO HELP ME GOD.
I believe it is such demeanor that has led to my unlawful- arrest and detention. Let me say in advance that like millions around the world, I love and have been greatly influenced by Nelson Rolihlahla Mandela's idealism and pragmatism. In this regard, and as a lawyer himself, Mandela said in 1962, in his speech "Black man in a white Court, "
I regarded it as a duty which I owed, not just to my people, but also to my profession, to tire practice of law, and to justice for all mankind, to cry out against this discrimination, which is essentially unjust and opposed to the whole basis of the attitude towards justice which is part of the tradition of legal training in this country. I believed that in taking up a stand against this injustice I was upholding the dignity of what should he an honourable profession.
I feel likewise. We lawyers are called upon to be 1'doers of the word, not its sayers only," writes HisLordship Tom Bingham in his book, The Rule o[Law. Throughout my years as a legal practitioner in this Court I have never seen such anger, hostility and prejudice from a judicial officer. Such anger, hostility and prejudice was demonstrated to us by the Chief Justice in his Chambers on Tuesday March 18. 2014, who told us point blank that contempt of court is a very serious offence and that the procedure the Court adopts In dealing with it is sui generis. Not surprisingly, similar sentiments were expressed by this court on our first appearance on Tuesday March 25, 2014. We have now been made to understand that the sui generis nature of the crime of contempt of court means that the Court is at liberty to violate, breach and undennine every known rule of practice, including non-compliance with
the Criminal Procedure and Evidence Act 67 of 1938, as well as the Constitution in order to arrive at the decision it seeks; a conviction at all costs. This cannot be correct. My sense of justice is reviled by a procedure labelled as sui generis but which is uncertain and further excludes due process, fairness, propriety and justice. This Court should not have been complicit in the rape of Lady Justice.
Sir Francis Gerard Brennan QC, the tenth Chief Justice of Australia says these words which are
apposite in this case:
What lawyers do know, however, is what laws, practices and procedures provide
safeguards which maintain public confidence in the Rule of Law. When the
conventional safeguards of Jaw and the legal process are dismantled or reduced so that the public sense that justice according to law is no longer assured to all people within the jurisdiction, public confidence in the Rule of Law is lost or diminished. That weakens the unity and fubric of society and exposes us to the danger from those who do not share a respect for the Rule of law.
This distinguished jurist goes on to quote Lord Devlin who states that "the judge who does JJOt appea impartial is as useless to the process as an umpire who allows the trial by battle to be fouled or an augerer who tempers with the entrails.'' He goes on to say that "No unsuccessful party should be left with any reasonable apprehensio11 of bias affecting the decision." As accused persons in these proceedings, the feeling that this Court is bias has never left us. From the very first day we appeared before this Court, we entertained a reasonable apprehension that this Court has not brought an impartial and unprejudiced mind to the resolution of the matter. We have been ambushed from day one, right to the end.
All applications we made before His Lordship have been against us, but found favour with the State. I accordingly agree with the Right Honourable Lord Tom Bingham of the House of Lords, writing on"The Rule of Law-The Sixrh Sir David Williams Lecrure, Cambridge, 16 November 2006 that “There are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live." It is also -on the public record that, at no point in the history of judicial independence in Swaziland has the Government recorded one hundred per cent (100%) victory, except under the stewardship of Chief Justice Michael Rarnodibedi!! TI1e judiciary has never been so executive-minded than under the leadership of Makhulu Baas.
Sir, from the day of our arrest on Monday March 17 and Tuesday 18,2014 respectively, it has deeply pained our hearts to see this honourable court violate and break every rule of practice in the justice game, as provided for in the Rules of Court and the rules applicable under the criminal justice system. This court has not only breached the normal rules of practice and procedure and the CP&E Act, which have governed the fair administration of the criminal justice for years; this court has blatantly violated and breached the Constitution of Swaziland, which is supposed to be the supreme law of the land. To put this issue beyond any shadow of doubt, section 14(2) of the Constitution provides that:
The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, the Legislature and the Judiciary and other organs or agencies of Government and, where applicable to them, by all natural and legal persons in Swaziland, and shall be enforced hav the courts as provided for in this Constitution.
Instead of enforcing the Bill of Rights and the Constitution, I contend that this court has subverted same. We want to say that 'other organs or agencies' of government include the office of the Director of Public Prosecutions (DPP), the Attorney General (AG) and the police. We strongly hold the view that the conduct of the office of the DPP, the AG, the police and the entire State machinery amount to the suspension or abrogation of the Constitution as envisaged by section 2(3) (of the Constitution). For the purposes of clarity, this is what the section says:
(3) Any person who
(a) by himself or in concert with others by any violent or other unlawful
means suspends or overthrows or abrogates this Constitution or any
part of it, or attempts to do any such act; or
b) aids a11d abets in any manner any person referred to in paragraph (a);
commits the offence of treason.
This Court, in collaboration and in an unprecedented conspiracy with the Chief Justice, the DPP, the police the Swaziland Government and the entire leadership of this country have concerted to suspend the supremacy of the Constitution and the Bill of Rights for egocentric reasons. They have committed the crime of treason. In the words of Scripture; "you sit tlzere to judge ... according to the Jaw yet you break the law ... " I dare say so although I am neither a fan nor supporter of the tinkhundla Constitution which itself is inconsistent with the Rule of Law; and is not a true reflection of the genuine aspirations of the people of Swaziland. It was forcefully imposed.
2. Events of Thursday April lO, 2014 Your Lordship, without belaboring this issue more than it has already been done, and with no intention to assail you personally, I simply want to deny that I insulted the court as it has been alleged. The reverse is true. Every practicing practitioner worth his salt, including the DPP and the AG will agree that judicial officers are expected by law, to treat litigants courteously even if they dislike them. In this regard the Bangalore Principles of Judicial Conduct (2002) (the Bangalore Principles) provides in Value 3, which deals with the INTEGRITY of a judge that:
3.1 A judge shall ensure that Iris or her conduct is above reproach in the view of a reasonable observer.
3.2 The behavior and conduct of a judge must reaffirm the people's faith in tlte
integrity of the judiciary. Justice must not merely be done but must be seen to be done.
Justice Wright of the United States of America (USA) during his continuation hearing said:
"There may be a place for arrogance. I'm not sure what place that would he, but I am sure that it is not on the bench. The courts do not belong to 11s. We are holding a public trust. The courts belong to the people. They need to he made to feel welcome, that this place is a place for resolution of their disputes ... Our job is to administer the Jaw fairly and impartially. It is not our place to m·sume a sense of power which we do not possessy a sense of superiority which we simply do not have. We are administering a public service.”
I respectfully contend that this court has failed in this regard. My sense of dignity was attacked by the court. The court, in an unprecedented show of abuse of authority was parading us. I strenuously deny that what his Lordship wanted was to call upon us to explain our non-appearance the previous day. I say so because this issue had already been fully addressed by our legal representatives. Had the court wanted us to explain, this would have been the first thing to have been done. In any event, the Court never did seek such explanation from us, but quickly sent us back to jail. I submit with respect that, His Lordship's saying so was an afterthought so as to justify the Court's shameful conduct towards us. There is no truth in this. It only goes to show that we are dealing with an unjust court. Anybody who has a conscience as I do, and who was present in Court would bear us out on this. The Court and the prosecution are at liberty to disagree with me on this.
To close on this issue, Jet me say that the treatment we received from the court was a violation of section18 of the Constitution which is taken from Article 5 the Universal Declaration of Human Rights (1948). Articles 5 provides that "No one shall be subjected to torture or cruel. inltumane or degrading treatment or punishment." Not only did we find human rights, human rights found us. Section 18 of the Constitution reads:
1) The dignity of every person is inviolable.
2) A person 'shall not be subjected to torture or to inhuman or degrading treatment or
Punishment
Nobody can deny that throughout our appearance before this Court, we have been treated degradingly and inhumanely, including our legal representatives. Thursday April 10, 2014 was the proverbial icing on the cake. I felt that our dignity was under severe attack by a court, which by law, has the responsibility to protect us. I felt completely vulnerable and helpless, I felt oppressed. I rightly lost it, and felt I had to defend and protect whatever dignity remained of us. Indeed Martin Luther King Jr, tells us as he struggled against segregation, oppression and racial supremacy in Montgomery, Alabama, that:
....there comes a time wizen people get tired of being trampled over by the iron feet of oppression. There comes a time my friends, when people get tired of being plunged acro.u the abyss of humiliation, where they experience the bleakness of naggiug despair ...
He proceeds to counsel us "to work and fight until justice ru11s down like waters and righteousness like a mighty stream." That time came to me on that morning of April lO, 2014. I simple could not take it any longer. 1 felt then as I do now, that His Lordship, being driven by anger, hostility and prejudice was not behaving like a judge. I felt duty bound to remind His Lordship to behave accordingly. I do not regret; yes I do not regret because since that morning His Lordship has tried to manage and hide his prejudice hostility and anger towards us. Let the Court be comforted by the fact that for my conduct, 1am willing to pay the severest penalty, even if it means spending more days, or even years in jail. It is well with my soul I accept he penalty with a clean and a clear conscience that I did no wrong, for were treated unfairly by an( inside the very fo1llltain of justice and fairness. Throughout this ordeal, we have been treated contemptuously.
3. I am not guilty of the offence of contempt of court, I offer the following explanation:
My Lord, during the Southern African Development Community Lawyers Association (SADCLA) Annual General Meeting held at the Royal Convention Centre in August 2012, my President, President of the Law Society of Swaziland, Titus Mlangeni said "the taste of the pudding is iu the eating." He was reacting to the statement made by the then Honourable Speaker of the House of Assembly Prince Guduza Dlamini, who presented a speech for and on behalf of His Majesty, King Mswati III. Let me make it clear Sir that I refer to the statement made by the President because, the highest authority had assured the assembly.' SADC Lawyers and the world. tha~ Swaziland was committed to the Rule of Law and the independence of the judiciary. Swazi lawyers had been engaged in a boycott of the Courts, having raised serious issues about the failure of the proper and effective administration of justice in the land, and the shameful misconduct of the Chief Justice Michael Ramodibedi, whose moral authority and reputation remains questionable not only in Swaziland, but also in his native country, the Kingdom of Lesotho. He has unsurprisingly elected to resign as Judge President of the Court of Appeal, m a strategy to avoid the long ann of the law \\11at was the response of Government and the leadership of this country to the boycott? Leaders of this country buried their heads in the sand, with the hope that the problems around the Chief Justice and the Rule of Law will go away. But no, the problems are still here with us today. The Prime Minister is on public record having sait.! that government is proud of the Chief Justice, and that he is not going anywhere! This statement was supported by the Minister for Justice and Constitutional Affairs, Sibusiso Shongwe. My Lord, let me be clear, I may not be perfect but I am a loyal member of the Law Society of Swaziland, which by the way, is established by an Act of Parliament. the Legal Practitioner Act No. 15 I 1964 (the Act). Every lawyer, is obliged to abide by the Act, otherwise he or she is in contempt of the profession.
We only know of one lawyer in recent times who has flatly refused to subject himself to the requirements of the Act; the Minister of Justice and Constitutional Affairs, Sibusiso Shongwe he unfairly and without lawful and reasonable justification attacked the Law Society of Swaziland .. when invited to appear to redeem himself before the Law Society Disciplinary Tribunal for alleged misconduct as an attorney. The Minister told Parliament that the courts deserve utmost respect. We say no; no institution of State or public officer deserves such respect; rather they must earn it. It is disgusting, to say the least, that the Chief Justice who heads the judiciary and the line Minister responsible for Justice and Constitutional Affairs have consistently refused to subject themselves to the law and the Constitution. They obviously hold the law in contempt. They are the law unto themselves.
True to the lawyer's complaints against the Chief Justice and my contention that the Chief Justice is morally bankrupt, his counterparts in the Court of Appeal of Lesotho indicted him in his own case; The President of the Court of Appeal v The Prime Minister and Four Others C of A (Civ) Case No 6212013. This is what the Court said at paragraph 22: The fact that the adverse effect of the impugned decision will be confined to the appellant's reputation leads me to a further consideration. It is this. At the time oftlte appointment of the Tribunal most of the allegations of misconduct against theappellant were already in the public domain. I say this in the light of the following:
a) The unseemly incidents flowing from the protracted conflict between the appellant
and the Chief Justice had been widely published.
b) Some of the allegations against the appellant had been the subject of formal
complaints by Lesotho Law Society while others were raised in a formal publicized
memorandum of complaint by the Law Society of Swaziland.
c) Some of the allegations against the appellant were mentioned in the report of the
ICJ Committee.
d) There was a petition by a group of concerned citizens to the Prime Jt Jinister calling
for the ouster of the appellant from judicial office, which also received coverage in
local press.
e) Finally there was the litigation between the appellant and the Prime Minister,
where virtually all the allegations of misconduct relied upon by the Prime Minister
were ventilated in the papers before the high court.
The Court of Appeal continued to emphatically state at paragraph 23 that:
The upshot of all this, as I see it, is that the appellant's reputation was already
tarnished before the request for the appointment of a Tribunal by the Prime Minister. On the face of it, it seems to me that the only way to salvage his reputation is for the appellant to successfully refute the allegations before the Tribunal ... The removal of the uncertainty surrounding the Appellant's reputation caused by the wide publication is not in his interest only. It also affects the unconditional public respect for the integrity of the judiciary without which the courts cannot function. The interest of the administration of justice thus required the appointmeut of the Tribunal as a matter of urgency.
This statement coming from the Chief Justice’s own peers, at his own backyard is surley an indictment on his moral authority, integrity and reputation as the head of judiciary in Swaziland. We have been vindicated, and we should be acquitted and discharged of the charges preferred against us.
What did Makhulu Baas do in an attempt to avoid and undermine the impeachment process? He resigned! This is nothing but an antic to claim moral high ground; a futile exercise. His attack on the integrity of the judgment does not help him. At some point he must submit to the law. Period. His cheap accusation of Justice Azhar Cachalia flies in the face of what he himself did to Mr. Justice Masuku. At east the Chief Justice did not have to appear before his accusers who would be witnesses, prosecutors and judges in their own cause. He appeared before a proper and fair court, which he denied Mr. Justice Masuku. Is it not a shame that in his letter to K.ing Letsie III, the Chief Justice alleges that his impeachment process in Lesotho is intended for personal agendas when he himself used the JSC to settle his personal dislike for Mr. Justice Masuku? It is indeed funny that Makhulu Baas claims he has done his best "thus far to defend the Constitution and the independence of the Judiciary in Lesotho against Executive interference" when in Swaziland he has absolutely undermined the Constitution and lowered the independence, integrity and dignity of the judiciary. We contend that it is contemptuous for the Chief Justice to complain that « •..the Constitution has been flouted with impunity ... " when he himself has flouted the Constitution of Swaziland. The Chief Justice cannot apply double standards. What is good for the goose should be good for the gander. Makhulu Baas has obviously and conveniently forgotten the Golden Rule: "Treat others as you want them to treat vou."
On this score, I want to submit that this emphatic finding by the Court of Appeal is in line with the Bangalore Principles referred to above. Paragraph 6 of the Preamble states that, "WHEREAS public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society." Paragraph 7 provides: "WHEREAS it is essentialtlmt judges, individually a11d collectively, respect and ho11our judicial office as a public trust and strive to enhance and maintain confidence in the judicial system." As if these are not enough, paragraph 8 speaks to the responsibility of the judiciary and reads: nwHEREASthe primary responsibility for the promotion and maintenance of high standards of judicial conduct lies with the judiciary in each country."
I have always viewed the conduct of judicial officers as servants of the people, to be open, to criticism and public scrutiny. In this view I am fortified by Value 4 of the Bangalore Principles which deals with the proprietary of judicial officers. Paragraph 4.2 reads:
As a subject of constant public scrutiny, a judge must accept personal restrictions that
might he viewed as burdensome by the ordinary citizen and shoUld do so freely and
willingly. In particular, a judge shall conduct himself or herself in a way that is
consistent with the dignity of the judicial office.
Without fear of any contradiction, I say that, I do not believe that the conduct of the Chief Justice is consistent with these principles and values. Rather, I have a firm belief that he is a liability and burdensome to the institution of the judiciary and an embarrassment to his own peers. He has tarnished not only his own image, but that of the judiciary. The manner in which he handled the Bhantshana Gwebu as well as this case demonstrates this. Judge Dlamini vindicated us that the Chief Justice was, and is wrong. We cannot in all good conscience disown our articles; we stand by every word contained therein. If anyone is in doubt, one only needs to have read the Weekend Observer of April20, 2014, where Her Ladyship Justice Qinisile Mabuza complains about the treatment she has received from the Chief Justice. She feels sidelined. If judges of the High Court of Swaziland are unhappy about the way they are treated by the head of the judiciary, why should we, the people shut up? It is absolutely not possible, if we have a conscience as I do.
4. The people are treated with contempt
The thrust of my defence is that I am not in contempt of court, but that the people of Swaziland are treated with contempt and disgusting disregard. The following factual allegations show such contempt against the people.
4.1 Contempt of the people's resolutions at Sibaya of August 2012
First, in support of this I make the following factual allegations. Your Lordship, the court will recall that. following the lav.ryers' unprecedented boycott of the courts for a continued period of at least four (4) months in 2011, as well as the "tmya '!.1·'aya'' teachers' strike and other forms of civil strife, His Majesty convened the People's Annual General Meeting at Ludzidzini in August 2012. I am sure the country will know that in terms of section 232(1) of the Constitution, "The people through Sibaya comililute the highest policy and advisory council (Libamlla) of the nation., Subsection 3 states that: "Sibaya functions as the annual general meeting of the nation but may be convened at any time to present the views of tile nation on pressing and controversial issues". Significantly, the King is the Chainnan of the meeting; he is at the centre of it all, in terms of subsection (2). This means that he bears the ultimate responsibility to ensure that the people's resolutions are executed and implemented.
What were these pressing and controversial issues? Sir, there were obviously many such pressing and controversial issues on the agenda but l will limit myself to only three. Number one was the form of; electoral system that Swaziland has to adopt and follow. To the surprise and shock of the leaders of this nation, stalwarts and proponents of the current discredited Tinkhundla system as enshrined in section 79 of the Constitution, the overwhelming majority of those who spoke, submitted that in 2013: Swaziland should have had an electoral system based on multiparty politics. I borrow the phrase "'overwhelming majority'' from Prince Mangaliso Dlarnini's Constitutional Review Commission (CRC) Report. The question that arises is whether this recommendation I resolution were implemented, or even worse. whether there are any plans to implement same? The answer, as far as we are concerned, is in the negative. It is our respectful submission that the failure or refusal to give effect and meaning to the people's resolution and aspirations to move towards a People's Democracy, as opposed to the
much talked about vague Monarchial Democracy, is contemptuous to the people of this land. My Lord, I respectfully state that, the people's call for elections on the basis of a multiparty constitutional dispensation is indeed consistent with section 1 of the Constitution which reads that:
Swaziland is a unitary sovereign democratic Kingdom.
Of course, section I must be seen in the light of other supporting provisions of the Constitution intended to consolidate democracy, as opposed to consolidating power and government by a clique, which claims the divine right to rule. Indeed, Article 21 of the Universal Declaration of Human Rights as read together with Article 25 of the International Covenant on Civil and Political Rights (ICCPR, 1966) provides that, the will of the people shall be the basis of the authority of government. In this regard Nelson Mandela in his book The Struggle is Mv Lite tells us that:
That the will of the people is the basis of the authority of government is a principle universally acknowledged as sacred throughout the civilized world, and constitutes the basic foundations of freedom and justice.
Let me say it categorically clear that, Swaziland being a member of the community of civilized nations has undertaken certain obligations. These obligations arise from her membership with the United Nations (UN), and with the African Union (AU). Under the auspices of the AU, and it has been emphasized that Africa must find solutions to its own problems; the African Commission on Human and People's Rights (the African Commission) an organ of the AU, has taken at least two policy decisions on Swaziland. In the first one, a decision of 2005 the African Commission found that the ban on political parties under the King's Proclamation to the Nation of April 12, 1973 violates Swaziland's obligations under· the African Charter on Human and People's Rights (1986), which Swaziland voluntarily ratified in 1995. By logical extension, the ban on political parties in terms of section 79 of the Constitution is a violation of the rights of the people of Swaziland to freely associate.
In the second decision of April 2013, the African Commission resolved that Swaziland was to respect all fundamental rights and freedoms, including the existence of lawfully recognized political parties to ensure genuine, free and fair democratic elections, including freedom of speech and expression during the 2013 elections. To put this issue beyond any doubt, the New Partnership for Africa's Development (NEPAD) which Swaziland is a State Party, puts it in clear terms at paragraph 79 that:
Africa undertakes to respect the global standards of democracy. the core components of which include political parties and workers' unions, and fair, open and democratic elections periodically organised to enable people to choose their leaders freellv.
To this, one may add the SADC Principles and Guidelines on Democracy and Elections (2004) as well as the African Charter on Democracy, Elections and ~Governance (Charter on Democracy) (2007). Article 3 paragraph 11 of the Charter on Democracy enjoins State Parties on "Strengthening political pluralism aud recognizing the role, rights and responsibilities of the legally constituted political parties, which should be given a status under national law." The import of this is that, political parties have been institutionalised as indispensable in African democracy. Swaziland is accordingly out of step with developments in Africa, and the rest of the just and democratic world. Contrary to these human rights provisions. political parties and the Trade Union Congress of Swaziland (TUCOSWA) remain banned in Swaziland. It is now generally accepted that no country can be a democracy while political parties are banned and cannot contest political power. This is the very key function and purpose of political parties. Swaziland is no exception.
His Lordship may wonder of what relevance this is in this trial for alleged contempt of court. The relevance is simple; the people of Swaziland have a right to determine and shape their destiny – the right to self~detem1ination. History tells us, and indeed proponents of the tinkhundla system are proud of the fact that His Majesty, King Sobhuza II was an active and card carrying member of the African National Congress (ANC), Mandela's political party; the governing party in the Republic of South Africa. Many of us are sure that His Majesty King Sobhuza 11 believed in the prophetic words of the Freedom Charter adopted by his ANC in 1955, which states in one of its emphatic concluding paragraphs that:
The people of the protectorates-Basutoland. Bechuanaland and Swaziland-shall be free to decide for themselves their own future
While the people of Lesotho and Botswana do enjoy the right to determine their future by electing a government through multiparty democratic elections, this is not the case with Swaziland where a government is handed down from above. The elections are merely a sham, a window-dressing exercise. Willie it is said that we are independent; we are not free.
It has already been said however, that "There are too many leaders who claim solidarity with Madiba 's struggle for freedom, but do not tolerate dissent from their own people." Accordingly, I submit that, this trial is not about the allegations of contempt of court. I abide by what I said in the article for which I now stand accused. But if truth be told, this trial is about the prosecution and persecution of the aspirations of the people of this land to determine their own destiny, democratically and freely. As a people we not only call for elections on the basis of political pluralism. In effect, we are calling for and demanding the right to be treated equally and with dignity before the laws of this country. Indeed the UN calls upon Member States in Article 55~(c~ to promote universal respect for, and observance of, human rights and fundame11.tal freedoms for all without distinction as to race, sex, language, or religion.
This call is perfectly in line with the words of the Universal Declaration of Human Rights that: "All human beings are born free and equal i11 dignity and in rights. They are endowed with rea.50II and13 conscience and should act toward one another in a spirit of brotherhood." Then I read from the Good News Bible that "God created ltuman beings, making them lo be like himself. He created them mole and female." The Americans got it right in their Declaration of Independence that, "We hold these truths to be self-evident that all men are created equal." And I have been told that we are a Christian country? Yet like in Animal Farm, some people are more equal than others. We refuse to be treated as non-entities, as Gentiles in our own land. This is the Exodus. We are crossing the Rubicon in our stride to freedom and democracy. And a great African leader and icon of the world says, ''/was not horn with a h1111ger to be free I was born free -free in every way that I could knon~" I can only add that when freedom is taken away, it becomes the onerous and supreme duty of men to reclaim it from the oppressor. For giving up freedom is tantamount to giving away man's right to dignity. One can have no dignity without his or her freedom. Without our freedom we are a people without a soul. For myself, I cannot, and I will not surrender my right to freedom and dignity so as to gain cheap favours with this repressive and barbaric regime.
The denial of the people to form a democratic government through political parties is a denial of their dignity, and freedom to choose; a denial of equality. In this regard the Supreme Court was wrong in Jan Sithole N. 0 and Others 1~ Swaziland Government and Others Civil Appeal No 50/2008 in holding that "like beauty, democracy is to be found in the eyes of the beholder." Democracy is now generally well defined in Africa to suggest it lies in the eyes of the beholder finds no support in any law.
Sir, in this regard we are encouraged and motivated by Nelson Mandela for he tells us that;
" .•. In its proper meaning equality befot=re the law means the right to participate in the making of the laws by which one is governed by a constitution which guarantees democratic rights to all sections of the population, the right to approach the court for protection not relief in the case of the violation of rights granted in the constit11tion,and the right to take part in the administration of justice as judges, magistrates, Attorneys~General, law advisers and similar positions ... "
Nobody in his or her right mind can deny that these rights are not available to the vast majority of the people of our colllltry. For as long as we are opposed to the tinkhundla system, we stand no chance of taking part. Prince Mangaliso minced no words at page 94 of the CRC Report that:
"All those who are appointed by the Ngwenyama to senior positions in government must be people who know the Tinkhundla system and believe in and live according to
that ... system."
We are still treated as second class subjects whose rights are subject to the whims of Swazi Law and Custom, which we, the people, have no say in its enactment. If anyone is in doubt about the truthfulness of this contention, the judgment of the Supreme Court in The Commissioner of Police and Another v. Mkhondvo Maseko Case No.312011 [20117 SZSC 15 is the authority for this proposition. This is the judgment for which Mr. Justice Thomas Sibusiso Masuku was unlawfully removed from office for defending. and NOT insulting the King. The Supreme Court boldly proclaimed per the Chief Justice Ramodibedi that:
The Constitution is informed by stro11g traditional values.
Indeed, such a pronouncement, although absolutely wrong in law, is in line and infom1ed by the Prince Mangaliso CRC Report which says at page 83:
The nation recommends that rights and freedoms which we accept must not conflict
with our customs and traditions as the Swazi Nation.
The problem with such a statement is that Swazi Law and Custom is pronounced by one person, the King, after consulting only his very close advisors who are appointed only by himself. The Prime Mangaliso Report says at page 135:
Pronouncements by the King become Swazi Law when they are made known to the nation, especially at Esibayeni or Royal Cattle Byre. The King is referred to as umlomolongacali manga ('(the mouth that never lies''). That is before any pronouncement or/proclamation, the King will have consulted and will have been advised.
We respectfully submit that such an arrangement is inconsistent with constitutionalism and the Rule of Law which embody democratic governance. For the King is not subject to judicial review, making him above the law. Francis Neate is right when he writes in "The meaning and importance of the Rule of Law" that:
What is the Rule of Law? Some people, even quite intelligent people express confusion about this. It is really not difficult. The Rule of Law is the only system so far devised by mankind to provide impartial control over the exercise of state power. Rule of Law means that it is the law which ultimately rules, not a monarch, not a president or prime minister, clearly not a dictator, not even a benevolent dictator. Under the Rule of Law no one is above or beyond tire law. The law is the ruler.
Let it be said that in just, civilized, progressive and democratic societies, while the constitution respects African traditional practices and values, such values are subject to the full enjoyment and exercise of basic human rights and fundamental freedoms and civil liberties. Human rights are God-given; they are inherent, inalienable, indivisible and inviolable. This is clearly not the case in Swaziland. Sir, in so far as the people have called for a democratic process of fonillng a government under the Rule of Law, they have been treated contemptuously. We surely need leaders who better understand the Rule of Law. Number two, the next point I would like to deal with regarding the contempt of the people and the Sibaya process as allegedly the highest policy-making structure is that of the appointment of the Prime Minister, Dr. Sibusiso Barnabas Dlamini. The Court may have taken judicial notice that the people asked His Majesty King Mswati III and the leadership of this country to give them their right to elect a-Prime Minister. Indeed, this is consistent with the call for elections based on a multiparty constitutional·.order. Under such a system, we will know that the leader of the majority party in parliament becomes the Prime Minister of the country. This was the case under the Independence Constitution of 1968, which was unlawfully, repealed by King Sobhuza II on April 12, 1973. This is the case with many African countries, at least post 1990. Is it not contemptuous that while the people called for the removal from office of the Right Honourable Dr. Sibusiso B. Dlamini in the last term, he was instead, re-appointed without their consent?
My Lord, I love President Barack Obama in his speech 'A New beginning' when he says:
"But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and does not steal from its people; the freedom to live as you please ..• " He states, "These are not just American ideas, they are human rights."
Indeed, the great Chief Albert Lutuli in his speech 'Our vision is a democratic society' said in 1958, That “For it is in the nature of man, to yearn and struggle for freedom. The germ of freedom is in every individual, in anyone who is a human being. In fact, the history of mankind is the history of manstruggliug and striving for freedom. Indeed, the very apex of human achievement is freedom and not slavery. Every human being struggles to reach that apex. .. "
I respectfully argue that the failure and refusal by the highest authority of this land to remove the Prime Minister and instead, re-appointing him is highly contemptuous of the people's will and aspirations. In any case, what is the criteria or basis for appointing a Prime Minister? Is it not Royal Dlaminism supremacy and superiority? We contend that this is the kind of evil domination of a people by another, which moved and inspired men of conscience and goodwill, to rise up and challenge such immoral social orders. Tinkhundla is our Swaziland version of South Africa's grand Apartheid and racial segregation and discrimination in the United States. It must be dismantled, it is inhumane. Indeed, Article 19 of the ACHPR provides that; “All people shall be equal, they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.” I accept the advice that to overthrow oppression, exploitation and domination has t4, sanctioned by all humanity as the highest aspiration of free man. This is why the African Charter stipulates that,"freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of African peoples." These words were true during the liberation struggle; they are still true; and most relevant for Swaziland today.
This domination has no justification. It is a denial of the freedom to choose, and to a government of the people, by the people and for the people. It is a denial of dignity.
Number three the next issue that arose at the Sibaya meeting is that relating to the infamous Circular No.1 of 2010. As far as we do recall, the citizens of this land called for the non-implementation and setting aside of this government pay~ out policy document. We listened and heard, speaker after speaker, condemn and attack this document as illegitimate in the face of massive poverty and unemployment. The natives of this land saw this, not as intended to eradicate and alleviate poverty, but meant to secure the comfort of self-serving politicians while we the poor, suffer terrible poverty and unemployment. What level of contempt of the masses of the people can we speak of? I insist that I am not guilty, but the leadership of Swaziland, jointly, collectively and severally should be in the dock for contempt of the people.
Significantly and ordinarily, where decisions and resolutions are taken at an AGM as is the case with Sibaya; failure to execute and implement such decesions and resolutions invite and warrant a vote of no confidence on the leadership. More than just a VOTE OF NO CONFIDENCE, the non-implementation and intransigent refusal to give effect to the People's resolution in the light of section 232 amounts to the suspension and or abrogation of the section. Consequently this is an act of treason.
4.2 Mr. Justice Masuku's Kangaroo trial by the Judicial Service Commission (JSC)
Second, the last issue I want to speak about is the unlawful removal of Mr. Justice Thomas Sibusiso Masuku as a judge of the High Court. Indeed, in the article for which I stand accused, I do say as I repeat here for emphasis, that the arrest and prosecution of Bantshana Gwebu was a kangaroo process in the same manner and fashion as that which we experienced during Mr. Justice Masuku's hearing before and by the JSC, chaired by the discredited and embattled Chief Justice. All right Mthinking members of the Swazi nation as well as members of the just, democratic, progressive and civilized world are in agreement that :Mr. Justice Masuku's accusers were prosecutors, witnesses and judges in their own cause. It is a fundamental principle of our law that no man shall be judge in his ovm cause. This is not only an old common law legal principle; it is also enshrined i9- section 21 of the Constitution. The JSC conducted the hearing in a manner inconsistent with the UN Basic Principles on the Independence of the Judiciary. Mr. Justice Masuku's prosecution, persecution and ultimate removal as a Judge of the High Court was a mockery of the fair and equal administration of justice and the Rule of Law in Swaziland. It enabled the guilty and the corrupt to try an honest and a just man. Today we enabled the guilty
stand accused by the same people who facilitated, unlawfully and unconstitutionally removed Mr.Justice Masuku from office. How long will it take? Madiba said in 1962:
I have grave fears that this system of justice may enable the guilty to drag the innocent before the courts. It enables the unjust to prosecute and demand vengeance against the just.
This is true for Swaziland today. We are obviously dealing with the dishonesty of unjust and dishonorable men and women. Indeed, we need to remember that in 2002 the judges of the Court of Appeal of Swaziland (as it then was); confim1ed Justice Masuku's judgment committing the Prime Minister Dr. Sibusiso Barnabas Dlamini; the then Commissioner of Police Edgar Hillary, and the then Attorney General Phesheya Dlamini, for thirty (30) days in prison for contempt of court. They blatantly refused to abide by the judgment of the court to allow the people of Macetjeni and KaMMkhweli to return to their land unconditionally. Chief Mtfuso II and his family is still languishing in exile in democratic South Africa. Unlike us, they never spent a single day in jail. These are the very people who have the audacity to send us to jail for contempt, when they themselves have no regard for the law unless it is favourable to them. Instead of being punished they were rewarded by being appointed to senior positions within the tinkhundla regime. So yes, this is a country where tl1e law has no place;"Oh, Cry the Beloved Swaziland."
Yes, the guilty sit in judgment against the innocent. Justice Thomas Masuku was judged by the unjust; they are unjust because the office of the Registrar of the High Court on the instruction of Chief Justice has refused to accept, receive and issue court process as by law required, on matters alleged to be touching upon the King, thus undermining the Rule of Law and fair administration of justice. They are unjust because the head of the judiciary has refused to subject himself to the law to answer allegations of serious misconduct against him by the Law Societies of Swaziland and Lesotho respectively. In our submission, it is contempt not only of judicial independence, but also judicial accountability that the judiciary today, is headed by an individual who has undermined the fair and proper administration of justice; a man whose reputation is tarnished.
The real truth, therefore, is that there is no equality before the law whatsoever as far as the small weak and vulnerable people are concerned, and statements to the contrary are definitely incorrect and misleading. 'What is worthy of note is that the greatest purveyors of the law in this this country are always rewarded. Sibusiso Shongwe was appointed Minister of Justice and Constitutional Affairs while Mpendulo Simelane, who attested an affidavit against Mr. Justice Masuku, was purportedly appointed Judge of the High Court. He sits in judgment in this case! Edgar Hillary was appointed to Senate while Phesheya Dlamini is in Foreign Service. Lorraine Hlophe is the Registrar of the Supreme Court as well secretary of the JSC. The argument we make is that Mr. Justice Masuku was not removed as a judge of the High Court because he committed acts of misconduct; rather he was removed because he refused to rubber stamp decisions of the immoral tinkhundla regime, as some judges do.
We contend that Mr. Justice Masuku committed no wrong. He acted in defence of the King and the Constitution, and litigants before him without fear or favour as justice demands. He is a judge of impeccable integrity. For this he paid the price. We in Swaziland will live to regret Mr. Justice Masuku's dismissal for as long as we live. There are many other instances where people have been treated contemptuously, but those are issues for another day. We would have addressed as a fourth issue the SPTC/MTN saga, where the people have been denied reasonable and affordable services but for the rich and powerful. Not to mention the imminent possible loss of the benefits flowing from the American African Growth and Opportunity Act (AGOA), resulting in the massive loss of employment opportunities, thus escalating poverty. Sheer arrogance.
It is our respectful contention that the issue here is not and has never been contempt of court. Rather, the real issue is the failure of leadership in this country at all levels. The issue is the abuse of the courts to silence dissenting voices in order to suppress aspirations for democratic change, and those who supposedly write/or speak "badly" about the tinkhundla system. The facts as stated above bear us out on this. I dare say on this score, that the dawn of a new day is coming. The people are yearning for freedom, democracy and justice. The time has come, and the time is now. Indeed, nobody can stop an idea which its time has come.
Let me close this issue by referring to Chief Albert Lutuli after the apartheid government deposed him As Chief of his people for his membership of the AN C. In a statement, "The road to freedom is via the cross, '' Lutuli said:
''In so far as gaining citizenship rights and opportunities for the unfettered development ... wlwwill deny that 30 years of my life have been spent knocking in vain, patiently, moderately and modesty at a closed and barred door? What have been the fruits of my moderation?"
5. The failure of leadership in Swaziland
In the context of Swaziland, who will deny that the people in the form of political parties, and here one may mention the People's United Democratic Movement (PUDEMO) which in 2008 was arbitrarily listed as a terrorist organization under the oppressive Suppression of Terrorism Act No.3 of 2008 and whose President and members have been arrested and charged under this draconian law; the Ngwane National Laboratory Congress (NNLC) a pre - independence organization which played a significant role in the attainment of independence, whose members were prevented from sitting as elected Members of Parliament after the 1972 general elections; as well as the newly formed Swazi Democratic Party (SWADEPA) whose leader is a lone voice in parliament, have all been peacefully calling for the recognition and lawful registration of political parties to advance, consolidate and give meaning to genuine democracy in Swaziland?
Who will deny that the organized labour movement through the then Swaziland Federation of Trade Unions (SFTU), Swaziland Federation of Labour (SFL) now the Trade Union Congress of Swaziland (TUCOSWA), have for a long period of time been calling for full democratization and full recognition of workers' and people's rights in the country? Sir, who will deny that the organized teachers union, the Swaziland National Association of Teachers (SNAT) and civil society including the Council of Swaziland Churches, the Students Movement and women's groups have long been calling for a peaceful transition to democracy to achieve social justice? I submit that nobody can deny that the organized legal profession and organized business through the Swaziland Coalition of Concerned Civic Organizations (SCCCO) have all been calling for good governance, respect for the Rule of Law, human rights and fiscal discipline. Nobody can deny that these people's organizations and individual members of the Swazi society through the Swaziland United Democratic Front (SUDF) have long been knocking in vain, patiently politely, modesty and moderately calling for a peaceful transition to full democracy. In recent times, the people have called for the release of the Sibaya report so that the decisions and resolutions can be implemented. But nobody cares to listen.
Sir, if the refusal to show respect for the people's aspirations to respect People's Democracy is not contempt of the highest degree against the people, then it absolutely points to failure of leadership. Yet we know as Barack Obama reminds that: "Suppressing ideas never succeeds in making them go way."
Of course, they will never go away even if brutal force, arrests and other forms of suppression and repression are used to silence dissent. It is on record that in the quest for full democratic and citizenship rights we have petitioned; yes we have held peaceful meetings; we have called peaceful protest, all of which have been violently dispersed by the government using the armed and security forces. Even as this trial was going on, this court and the tinkhund/a government prevented the people from coming in to observe the proceedings; a failure of open justice. His Lordship himself refused to use a bigger courtroom even when asked by our counsel, despite that bigger court rooms were available. Instead the courtroom was packed with members of the security forces to intimidate those present, for expressing their displeasure with the injustice displayed by the court. This is darkAft3ustice. It is such show of force that led Nelson Mandela to say: "Government violence can onlv do one thing, and tltatit breeds counter violence. "
Indeed the Universal Declaration of Human Rights warns in paragraph 3 of the Preamble that:
".·· .. it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should he protected by the rule of law ... "
We make no threat if we warn as Nelson Mandela did in his speech from the dock in 1964 that, "there comes a time in a life of a nation when there remain only two choices -submit or figft." We hope common sense and reason will prevail on the leadership of this country so that as a people, we are not compelled to make that hard choice; a choice of rebellion. We have not forgotten the bomb explosion under the bridge at Lozitha. I am yet to stand trial for my statements regarding that sad and painful incident in which two of our friends, Musa John Dlamini and Jack Govender died. Swaziland has lost its conscience. We have lost our humanity; our buntfuhas long left us. Yes we cannot forget the death of Sipho Jele in prison.
6. Public Statement by the Judicial Service Commission issued on April2, 2014
We already have been found guilty. The JSC in its statement on April 2, 2014 stated that contempt of court in this jurisdiction was one of the most serious offences against the administration of justice. It said that contempt of court is not protected under section 24 (3) (b) (iii) of the Constitution. The JSC has canvassed the case for the prosecution. The question is can His Lordship find against his bosses, the JSC and the Chief Justice? All pointers since this case stai1ed show that His Lordship has already made up his mind, and the trial is a mere formality to validate a decision long taken. Surprisingly the JSC has not only warned the general public, it went on to attack in particular the progressive democratic movement in Swaziland. It said freedom of speech "is not absolute as the progressive organizations and other like-miJrded persons seem to suggest." This seems to me to give credence to my view that this case has nothing to do with the alleged contempt of court; it is rather a battle of ideas. I do want to say however, that the JSC's interpretation of section 24 (3)(b)(iii) is strange. It is strange because it is skewed to suit its narrow reading. The JSC omits to make reference to the paragraph that the limitation of freedom of expression is justified only " ... except so far as that provision or, as the case may be, the thing done under the authority of that low is shown not to be reasonably justifiable in a democratic society” I submit that contempt of court in the circumstances of this case is not a justifiable limitation of the freedom of expression in a democratic society.
Indeed, I take this from General Comment No. 34 of the Human Rights Committee of the UN (2011) where it interprets Article 19 of the ICCPR. The Human Committee says that, ''Freedom of opinion freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute tile foundation stone for every free and democratic society. The /JVO freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions." The Human Rights Committee proceeds to say that "Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.”
" What is more is the finding by the Human Rights Committee that, "The freedom of opinion and expression form a basis for the full enjoyment of a wide range of other human rights. For instance, freedom of expression is integral to the enjoyment of the rights to freedom of assembly and association and the exercise of the right to vote."
The net effect of these is this, with the prohibition of freedom of expression through the nebulous crime of contempt of court, coupled with the ban on political parties to freely associate and assembly, Swaziland is not, and cannot claim to be a democratic and constitutional state. It lacks the credentials of a democracy and constitutional state, even if it boasts of a written constitution. Swaziland remains a dictatorship without any inhibitions.
Judge William Birtles writing on "The Independence of the Judiciary" is correct when he says:
Judicial independence is a central component of any democracy and is crucial to the separation of powers, the Rule of Law, and human rights..... Constitutions of nondemocratic countries also include provisions concerning human rights. These provisions, however, are a dead letter. because there is no independent judiciary to breathe life into them. Judicial independence has a dual goal: to guarantee procedural fairness in the individual judicial process and to guarantee protection of democracy and its value.~·. Without judicial independence, there is no preservation of democracy and its values·. The existence of judicial independence depends 011 the existence of legal arrangements that are actualized in practice and are themselves guaranteed by public confidence in the judiciary.
Whither Swaziland! If anybody is in contempt in this case, it is nobody other than the JSC-they have issued a public statement with the sole and singular purpose of influencing the decision of this case. We are simply waiting to see if His Lordship will hand down a verdict different from that which Makhulu Baas and the JSC, in collaboration with the government and the leadership os Swaziland seek.
7. What is the way fonvard for Swaziland?
Your Lordship, the last issue would obviously be, having pointed out some and not all the ills of our society, and the contemptuous character of the leadership towards the people's aspirations, what is the way forward for our country?
1. In the short term, in order to restore the integrity of the judiciary, the people of Swaziland have said it loud and clear that the Chief Justice Michael Ramodibedi be immediately suspended and removed from the office of Chief Justice of the Kingdom of Swaziland. His removal should obviously be after following due process in terms of section 158 (3) as read in light of section 21 of the Constitution. What he refused to afford Mr. Justice Thomas Masuku by law, should be afforded to him by law. In any event section 157 (I) of the tinkhundla Constitution stipulates that a "'person who is not a citizen of Swaziland shall not be appointed as Justice of a superior court after seven years from the commencement of this Constitution." But the Judicial Service Commission shamefully tells us that Swazis are ill-qualified, iU-equipped and incompetent for the position of Chief Justice. This is an insult to the members of the legal profession and the Swazi Nation.
2. The people's organs of power, that is, political parties together with organized civil society as well as individual natives of this land, have stated without ambiguity, that Swaziland must move forward towards a truly democratic state, with multiparty system as a basis for the formation of government. Sir, the modalities and details of how tills is to be achieved must be, and will be negotiated by all interested parties, on agreed terms on the basis of full equality, at a National Convention. The SADC-Parliamentary Forum has suggested and recommended as much.
3. This obviously calls for a review of the 2005 Constitution as long recommended by the
Commonwealth Expert Team on election observation in 2003 and 2008, recently echoed by the African Union through the AU Election Observation Team as well as the SADC Lawyers Association Election Observer Team last year. This will ensure that there is separation of powers and respect of the Rule of Law, an independent judiciary and full respect and enjoyment of all human rights and fundamental freedoms. We deny that the call for a constitutional monarchy is a call to overthrow the monarch in Swaziland. We are calling for a system of government where democratic governance, can and will co-exist with a monarchy whose powers are properly limited by law, under a democratic constitution - so that nobody is above the law but the law; is the ruler, so as to provide checks and balances.
4. When all is said and done, a democratic Constitution should lead to the o ding of free, fair, credible and genuine democratic elections, giving birth to a people's democratic government.
8. I have been honest
I have tried to speak the truth as honestly, as candidly and as best I can about what I see as challenges facing us at this defining moment. I hope I have been able to show how the people's rights and aspirations have been ignored. It is our view that the injustices we have referred to are sowing seeds of an extremely dangerous situation in the country as shown by the alleged threats to the lives of the Chief Justice and Judge Simelane; if newspaper report are anything to go by. As a country we need to talk and act; act rightly, justly, and timely.
As it has been said that, "those who cling to power through corruption and decei't and sidelining o(dissent know that you are on the wrong side of historv ... (or the world has changed and we must change with it. "
For my pm1. as a young student activist together with others until now, we have tried to do our duty to the Swazi people. We will continue to do so even in the face of hardship; regardless of the fact that our motives are at present, being deliberately misunderstood. We do not have the slightest doubt in our minds that we are innocent. Posterity will in due time prove us so. Those who brought us before this court together with the leaders of this country are the criminals who should be in the dock.
Let me say that we hate the political arrogance of the tinkhundla system; we hate deeply the arrogance of the judicial system under this system and, particularly under Makhulu Baas. Above all, we hate with a deep passion the subjugation of the democracy and peace loving people of this country to the status of second class citizens and sub. humans. We do not know how long we will live under this system, but we will never accept it. Mahatma Ghandi said years ago in 1922 from the dock that, "Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection ... "' We have done so in Swaziland, and we will continue doing so until victory for democracy is won.
Martin Luther King Jr is right when he says, "the arch of moral universe although long, is bending toward justice., Let there be no doubt that like everybody else, I would like to be loved, even to be loved by the highest authority of this land, if that were to be possible, but as Helen Suzzman says"/ am not prepared to make any concessions" on the higher values and noble principles of freedom, justice and democracy for all, which we hold so dear. We are the little people of this land. The people in this court have come from all corners of Swaziland; from the small dusty roads and valleys. They come from my area of birth. atK.a-Luhleko, from the poor townships of Bhunya and Mhlambanyatsi, forced into poverty by the unceremonious and somewhat politically motivated closure of the SAPPI (Usuthu) Company. We come from Luyengo and from the cities and townships of Mbabane and Manzini, from all the four regions of this land. My Lord we all want the same thing, full citizenship rights, equal treatme11t and equal protection under and before the law. All we are asking for is equal opportunity in the spirit of brotherhood and sisterhood. We have not lost faith in the overall goodwill of man, even in the face of evil. We are little people trying to do what is right; trying to do what is just.
9. Severest price and penalty
In conclusion, let me make it clear that I am not naiVe. I have read between the lines and have realized that our fate has long been determined. I do not for one moment, believe that in finding me guilty and imposing a penalty on me for the charge I face, the court should be moved by the belief that penalties deter men from a cause they believe is right. History shows that penalties do not deter men and women when their conscience is aroused. Given that our fate was long decided, I do not wish to waste either your time or mine. Accordingly, I invite His Lordship to impose whatever severest price and penalty this Court deems fit_ Somebody tells me that "somehow unearned suffering is redemptive," and somewhere I read "to be joyful in hope, patient in affliction, faithful in prayer." The path to freedom goes through prison, but the triumph of justice over evil is inevitable. Nothing this Court can do will shake me from my commitment to simple truth and simple justice and the belief in the noble values of democracy, freedom and human dignity. No moral man can patiently adjust to injustice. I do this knowing fully well the consequences of my decision. As has been said, standing up to powerful interests and injustice carries a price.
Although the writing is on the wall, I give the Court the benefit of the doubt that it will apply its mind to my defense and t11e points I have raised. Nevertheless the longest, revered political and prisoner of conscience and arguable the greatest leader of our time tells us that:
To go to prison because of your convictions, and be prepared to suffer (or what you believe in. is something worthwhile. It is an achievement (or a man to do his duty on earth irrespective of the consequences.
The founding President of the Swaziland Youth Congress (SWAYOCO), the charismatic Bennedict idiza Tsabedze told us some years ago that the struggle is not a bed of roses.
In closing, may God bless the people of Swaziland and the peoples of the just, democratic and progressive world.
Amandla!! Alula Continua!!! EmbilingemzabalazoEmbili!!! PhansingeTinkhund/a Phansi!!
PRISONER 353; 43812014
SJDWASHINI CORRECTIONAL INSTITUTION (PRISON)
MBABANE
SWAZILAND
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