Background to the Bheki Makhubu case
22 April 2013
Wave of support for embattled Swazi editor as ‘sun sets’ on media freedom
The Media Institute of Southern Africa in Swaziland (MISA-Swaziland), a press freedom NGO, is encouraged by the number of voices supporting embattled editor Bheki Makhubu, who last week was told by the high court to pay E200,000 ($US21,000) within three days or else go to jail for two years.
Makhubu, editor of monthly magazine The Nation – Swaziland’s last remaining source of independent journalism – was found guilty by high court judge Bheki Maphalala of ‘scandalising the courts’ after writing two articles (in November 2009 and February 2010) about the role of the kingdom’s judiciary.
The articles question the independence Swazi judges, criticise controversial chief justice Michael Ramodibedi, and call on newly appointed judges to adhere to the 2005 Constitution.
If Makhubu and his publisher, Swaziland Independent Publishers, are unable to pay the $US21,000 fine by Tuesday 23 April, 2013, the prominent editor will spend the next two years behind bars.
Swazi Media Commentary, a blog based in Botswana, reports that “Makhubu has said he will appeal the sentence, but grounds for such appeal have not been made public, and they are not immediately obvious to media watchers of the kingdom. Observers expect Makhubu to be imprisoned on Tuesday”.
The Times of Swaziland Sunday, a privately owned but censored tabloid, reports on 21 April that Makhubu has lodged an appeal and is awaiting a reply. “I have since filed an appeal against the judgment and I will be waiting for its outcome,” said Makhubu.
President of Swaziland’s national association of journalists (SNAJ), Mfanukhona Nkambule, said in the Times Sunday report that SNAJ had launched a fund to assist Makhubu and The Nation to pay the fine. Makhubu said The Nation, as a small magazine, does not have the money to pay the fine.
MISA-Swaziland supports this move and calls on anyone wanting to donate to contact Nkambule on +268 7621 6503.
Makhubu has received support from fellow Swazis, though minimal backing has come from the local media, which is mostly owned and controlled by the government and the royal family. The one independent newspaper group in the kingdom, The Times of Swaziland, is heavily censored and does not directly or consistently question or criticise the ruling elite.
Despite this, editors at the two daily newspapers – Times of Swaziland and Swazi Observer – have made an effort to support Makhubu. The Times editorial on Monday, April 22 2013 describes the sentence against Makhubu “as an attempt [by the judiciary] to put a lid on complaints”.
Mbongeni Mbingo, managing editor of the Swazi Observer, which is owned by Tibiyo Take Ngwane, an investment fund effectively owned and controlled by King Mswati III, wrote a ‘blank page’ opinion piece that seemingly criticises the decision of judge Bheki Maphalala, and, therefore, could be interpreted as an act to stand in solidarity with The Nation magazine.
Jabulani Matsebula, president of Swaziland’s editors’ forum (SEF), commenting on Makhubu’s sentence, said: “It is a shock that in this day and age anyone can actually receive a custodial sentence for criticising a public institution and expressing himself on the conduct of a public official.”
Matsebula, recently appointed as Swaziland’s first media ombudsman, added that it is “particularly disturbing because The Nation magazine is considered a credible independent voice in Swazi journalism”.
The South African Editors Forum (Sanef) posted news of Makhubu’s story on its website homepage (www.sanef.org.au) under the headline, “Sanef concerned with sentencing of Swaziland Editor Bheki Makhubu”.
In part, the Sanef statement reads: “The use of contempt charges to silence legitimate scrutiny of judicial conduct and attitudes will do nothing to secure the dignity and credibility of Swaziland’s courts. On the contrary, by seeking to enforce silence rather than foster open debate, this judgment is more likely to engender doubt, criticism, and suspicion of Swaziland’s courts than it is to create respect.”
Sanef also urges the South African government and the African Union to “more vigorously remind the Swazi authorities of the importance of a free press and open democratic environment”.
In some of the strongest language against the ruling, the Swaziland solidarity network (SSN), a pro-democracy movement based in South Africa, said: “In the High Court of Public opinion where the Chief Justice Ramodibedi is viewed as the worst Chief Justice the country has ever seen, the king’s lap dog and currently occupies his position unconstitutionally, the entire case is a witch hunt and a political manoeuvre on the country’s only independent magazine and the government’s most fearless critic.”
The SSN appear to allude to Section 157(1) of Swaziland’s Constitution, which came into effect in on July 26 2005, says: “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.”
The Chief Justice in Swaziland is Michael Ramodibedi.
Ramodibedi, as reported by the Mail & Guardian [a South African newspaper] this week in its article ‘Judicial crackdown on Swazi editor’, was recruited from Lesotho, where he continues to sit as president of that country’s court of appeal.
Putting aside the conflict that may arise from being chief justice in one country while simultaneously being president of the court of appeal in another country, it is now April 2013, more than seven years after the commencement of Swaziland’s Constitution.
Does this, therefore, suggest that Lesotho citizen (and non-Swazi citizen) Michael Ramodibedi, who is current chief justice of Swaziland, is now holding his Swazi post unconstitutionally?
According to Section 157(1) of Swaziland’s highest law, it would seem so.
Flowing from this, Section 64(2) of the Constitution says the king, as head of state, “shall protect and defend this Constitution and all laws made under or continued in force by this Constitution. Which in turn leads to Section 64(4)(d), which states that the king has the power to issue “pardons” and “reprieves”. Therefore, if he so wishes, power lies with King Mswati III to pardon Bheki Makhubu.
Above all these sections, though, is Section 24(1): “A person has a right of freedom of expression and opinion,” which includes “freedom of the press and other media”.
If the matter continues in the courts, which is most likely, MISA-Swaziland calls on the judiciary to respect Section 24 of the Constitution and, on appeal – after a transparent and proper legal process has been followed – to drop the charges against Bheki Makhubu and The Nation.
As bad as criticism is, criminalising words and articles in the name of respect will do nothing to generate confidence in the Swazi judicial system. And, as hurtful as criticism may be, criminalising inconvenient truths and silencing dissent, in the long run, does nothing to sure up Swaziland’s place in the modern world.
The free exchange of ideas and words – harmful, offensive and critical words included – are a necessary part of democracy and, moreover, are legally protected by Swaziland’s Constitution. What’s more, legitimate debate and truth should always be a watertight defence.
Notwithstanding the above legal quagmire, the Mail & Guardian in the same article this week reported a piece of information that is rarely, if ever, mentioned in the Swazi media.
Swaziland’s “Attorney general Majahenkhaba Dlamini prosecuted the case [against The Nation] after being delegated to do so by his wife Mumsy Dlamini, the director of public prosecutions”.
MISA-Swaziland suggests that this mere fact – that a public prosecutor wife delegates a case to an attorney general husband – raises certain conflict of interest questions.
Also lending their support to Bheki Makhubu and The Nation is Swaziland’s centre for human rights. In a statement the centre said they were “shocked” by the court’s ruling. “We believe the media is very important for every state and their critical thinking is pivotal for social development in all sectors of life. The judiciary, though independent, is not immune from criticism. Section 24 of our Constitution provides for the freedom of expression.”
Freedom House, a U.S.-based human rights NGO, said the sentencing of Makhubu is a “blatant disregard for the constitutionally protected right to freedom of expression”. Freedom House calls on the government of Swaziland to “withdraw all charges against Bheki Makhubu and stop its continued attack on its citizens’ political rights and civil liberties”.
London-based human rights NGO Amnesty International, which has helped Bheki Makhubu and The Nation in the past, said the judge’s ruling was “proof of the southern African kingdom’s increasingly aggressive crackdown on independent media and freedom of expression”.
The local media in Swaziland, particularly the state owned and controlled broadcast media, has been mostly silent in defending The Nation, and, by extension, defending their own freedom of speech.
However Times of Swaziland’s Saturday’s paper, Swazi News, published a possibly risky but commendable editorial on April 20 2013 in defence of freedom of speech. (Risky insofar as it could be interrupted as disrespectful to the judge’s ruling against The Nation.)
“The sun has set on media freedom in the country. For a long time the country’s politicians have been saying media practitioners are free to write on any issue. As a journalist I find it very scary to write this piece, I do no know what those in charge of the administration of justice will perceive it as but the sentence against Bheki Makhubu and The Nation is one of the harshest sentences to be handed down by our courts…
“A free media is the epitome of democracy and basic liberties. A country’s freedom is measured through the way the country treats its media. An independent press should mirror society and that helps to play the role of watchdogs where there are no political parties. The world measures a free society through the freedom of the press.”
The editorial concludes by saying “an axe” is now “hovering over media freedom, we all no longer have a say”.
The daily newspaper Times of Swaziland on Monday, April 22 2013, a day before the possible imprisonment of Makhubu, spoke in strong terms condemning the actions of the judiciary.
“It is no secret that we are in the midst of midst of a judicial crisis and have been for over two years. The crux of the matter is simply the question of whether or not the people of Swaziland trust their Judiciary to do right by them…
“In the context of the repeated failure to address the people’s concerns about fairness and transparency in the Judiciary, the decision to fine the editor E400,000 (or be jailed) can only be interpreted as an attempt to put a lid on complaints; to restrict the confidence of the Swazi people to speak up when they see a problem so that, together, we can fix it. Shooting the messenger is the best way to ensure that problems are never reported; thus remaining unresolved.”
(The total fine against Makhubu and The Nation is E400,000 ($US42,000) but half was suspended for five years providing The Nation does not step out of line – or ‘scandalise the courts’ – again.)
MISA-Swaziland supports and echoes all the voices speaking up for Bheki Makhubu and The Nation magazine; for these voices represent much more than support for one person and one magazine. They support the ideal (and constitutionally protected provision) of freedom of speech: that everyone has a right to speak his or her mind, and that Swazis should feel safe and protected when they do so.
MISA-Swaziland supports as many voices in the media as possible: citizen’s voices, government voices, civil society voices, business voices, royal voices, foreign voices, etc. – the list goes forever on.
MISA-Swaziland supports approving voices as much as we support dissenting voices. We support the idea that people have the right to question and the right to be questioned; the right to criticise and the right to be criticised; and, if it happens, the right to offend and the right to be offended.
We support modern, realistic, proportionate and non-criminal libel and defamation laws. We believe disclosure of information and news, in the public interest, should always be the norm, and suppression and censorship should always be the very rare exception.
In a constitutional democracy, of which Swaziland purports to be, people are free to dismiss and are free to be dismissed. People are free to ignore while others are free to ignore you – this gets close to the essence of freedom of speech.
May common sense and freedom of speech be defended, and may Bheki Makhubu continue his important work.
Background on Swaziland
Swaziland, where a quarter of the population live with HIV, is a landlocked absolute monarchy of one million people in sub-Saharan Africa, wedged between South Africa and Mozambique.
In 2010 Médecins Sans Frontières, an international health organisation, said life expectancy in Swaziland – ruled by King Mswati III since 1986 – had dropped from 60 years-of-age in the 1990s to 32 years in 2007. HIV and tuberculosis are the main killers, said MSF.
In 2012 Forbes magazine rated Mswati the world’s 15th richest monarch with a personal fortune of $100 million, while describing the king as one of Africa’s “five worst leaders”. Seventy percent (70%) of Swazis live on $1 a day and 40 percent of the population are unemployed.
The Media Institute of Southern Africa in Swaziland (MISA-Swaziland) defends and promotes freedom of speech and assists journalists to go about their work.
GROWING SUPPORT FOR ‘NATION’ EDITOR