Thursday, April 18, 2013


Bheki Makhubu, the editor of the Nation magazine in Swaziland, faces two years in jail if he cannot pay a fine of E200,000 (US$22,000). The Swaziland High Court judged two articles he wrote for the magazine were in contempt of the court.

Here are extracts from the articles complained of. They are taken from the official transcript of the High Court ruling. Click here for the complete document.

The first article appeared in the Nation in November 2009 under the heading ‘Will the judiciary come to the party?’
(1)       The Judiciary despite being the custodian of the ideals of a Constitutional State, has yet to show its hand and join the party towards creating a society whose values are based on the ideals of the rule of law.
(2)       Could the appointment of the four eminent jurists signal a change of how the judiciary seeks to participate in our changing society.
(3)       The main reason why the judiciary has been slow to adapt to the values brought about by the new order of 2005 has to do with the events of November 28, 2002 when the government, led by the current Prime Minister overthrew a decision of the Court of Appeal which sought to stop the eviction of some Swazis from Macetjeni and kaMkhweli.
(4)       When  Jan Sithole, Mario Masuku and a group of prodemocracy organisations, .... approached the Supreme Court early this year to ask for the judges’ opinion on whether the Constitution allowed for political parties the Justices, in the majority decision, were dismissive of the question to the point of being contemptuous to Swaziland’s stance in relation to the Constitution.
(5)      Justice P.A.M. Magid, sitting together with Justices M.M. Ramodibedi, J.G. Foxcroft and A.M. Ebrahim delivered a stunning majority judgment that equated Swaziland in 2009 with the medieval politics of England.
(6)       This, it turns out, was the sole basis on which they refused to unpack the Constitution and interpret it in a manner that brings Swaziland in line with the 21st century values which we all live by today.
(7)       They went further to compare Swazi politics to the very repressive and failed political systems of East Germany and the Soviet Union when Justice Magid declared: Democracy is, I would suggest, like beauty, to be founding in the eyes of the beholder.  Similarly, I suggest with Swaziland.
(8)      Essentially what the eminent Justices of the Supreme Court were telling us in this judgment was that they could not be bothered to interpret the Constitution; that if Swaziland wants to create a repressive society, then so be it.
(9)      Again, the message sent by the judges here is that, whereas it is well known that academics play a crucial role in shaping the law, Swaziland has become so irrelevant to the world as we live in today to the extent that academic thinking has no place in our society.
(10)           If one reads this judgment in its abstract form, you have to agree with Justice Albie Sachs’s quote earlier: every judgment is a lie, not in its content, but in the story it tells.
(11)           If we are to understand that the promulgation of the Constitution of 2005 sought to change our way of life insignificantly, then it is fair to say that the judgment is out of order.   This point is particularly reinforced by the fact that the issues brought to the Court at the time had much to do with the question of fundamental rights.
(12)           To discuss off-hand the question of fundamental rights, as the Court did, is criminal.  To rubbish academics, as the judges did, simply because their views would not promote the agenda in this judgment is treasonous.  (My emphasis)
(13)           The question, thus arises again: what does the appointment of these judges mean, in real terms, to jurisprudence in Swaziland?
(14)           Can Justices Sarkodie, Hlophe, Maphalala and Mazibuko do what justice Ngoepe said was to ‘bring new minds to bear on issues .... not simply to rubber-stamp prior judgments; be their masters voice?
(15)           What ordinary Swazis now need is for the judiciary to begin to show us that this Constitution is ours and that we can use it to better our lives.
(16)           The tradition among judges of higher Courts has always been one of big men who live mysterious lives away from ordinary folk; men to be feared and revered, whose standing in society is much above even those of highest authority.  In other countries, like South Africa, that thinking has changed....
(17)           This country desperately needs to see a judiciary that works to improve the people’s lot. It is up to these men to join people like Justice Masuku in making this a better country.
(18)           As the controversial Judge John Hlophe of South Africa is quoted to have once said: ‘Sesithembele kunina ke’.
(19)           The judiciary, judges and lawyers need to play their role in the Constitutional dispensation.”

The second article appeared in the Nation in February 2010. It was a comment piece written by Makhubu with the headline ‘Speaking My Mind’. 
(1)  When Chief Justice (name given) stood before his peers and the country as a whole at the official opening of the High Court last month, and went into an unprecedented show of beating his breast, Tarzan-style, calling himself a ‘Makhulu Baas’, I almost wept. I am not sure whether I almost wept for the man himself or the levels to which our judiciary has sunk.
(2)        Here is a man, honoured by King Mswati III ... behaving like a high school punk. 
(3)        Justice (name given) whatever he might think of himself sunk to such a terrible low that day. He stooped below the floor.  What extra-ordinary arrogance!
(4)        Those of us who take a keen interest in general issues know that a person of Ramodibedi’s standing should behave with decorum .... Judges, by tradition, do not behave like street punks.
(5)        Ramodibedi’s choice of words was very interesting.  He calls himself a ‘Makhulu Baas’, a word he dug up from the cesspit of apartheid South Africa.  He now comes to this country to use it against us.... If Ramodibedi suffers from a hang-over of apartheid he should not take it out on us.  (My emphasis)
(6)        What is most disturbing about Justice (name given)’s behaviour is that he was exercising his authority mainly on his colleagues, the judges of the High Court.   Not only did the Acting Chief Justice lower his own stature, but he brought the whole house down.
(7)        I do not know Justice (name given) from a bar of soap... I do know some of the judges he thought he was giving a dressing down and can say that in the time they have practised on the Bench, they have behaved in a manner only to be expected of people of their standing.  Decorum, Your Worship, decorum!
(8)        Because people of Justice Ramodibedi’s standing are appointed to office by King Mswati III, I will probably never know how he was selected to this position.  I can say, though, that from his remarks he is a man who does not inspire confidence to hold such high office.   How can we respect a man who speaks such language as he did? (My emphasis).
(9)        As it were the judicial system in this country is in shambles.  This is why you have such a high incidence of murder yet nobody ever seems to stand trial.
(10)      Justice (name given) is a guest in this country.  Anyone who understands cultural etiquette will know that you do not just walk into another man’s homestead and beat your breast telling everyone you are the boss.  It is downright rude.
(11)      Because he is a well educated man ... he will become the man he is most certainly not right now.
(12)      But above all, he will know the Swazi people hitherto mistakenly believed by the rest of the world to be submissive to blind authority (sic).   He will then realise that Swazis are not fools.
(13)      Again I say Justice (name given) must not misinterpret the silence to his remarks or think that in getting his way he has beaten the judges of the High Court into line.”

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