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Free defenders of a free press

All who believe in and want freedom, justice, peace, and prosperity for the people of Swaziland should ask ourselves this World Press Freedom Day why two of the strongest voices for press freedom in the country -- The Nation magazine editor Bheki Makhubu and human rights lawyer ThulaniMaseko - have languished in prison for over a year for assertingthe right of everyone to hold opinions and receive ideas andinformation?  We should all be speaking up in support of their release because freedom of expression is the most fundamental human right that will secure a better society for us and our children.

The United Nations General Assembly declared May 3 as World Press Freedom Day to raise awareness globally about the importance of freedom of the press and to remind governments of their duty to respect and uphold the right to freedom of expression enshrined under Article 19 of the Universal Declaration of Human Rights.  Article 19 affirms that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

As we celebrate the fundamental principles of press freedom and pay tribute to those journalists who have made great sacrifices to defend them, itis particularly important to look closely at the case of Makhubu and Maseko who were arrested and charged with contempt of court for having written articles questioning the irregular handling of a court case involving a government vehicle inspector.

They were ultimately found guilty on July 17, 2014 and sentenced to two years in prison.  

Their sentences far exceeded the precedent in similar cases and seemed designed to send a clear warning to other journalists that criticism of the government, and the judiciary in particular, will not be tolerated.  

Silencing journalists through contempt of court charges is inconsistent with international obligations to which Swaziland has voluntarily agreed, and protecting the reputation of the judiciary is not a justification for stifling free speech. Several issues demonstrate that the imprisonment of these two journalists clearly undermines free expression in Swaziland. The first issue is whetheror not it is ethical for judges to bring contempt of court charges for commentary such as the articles penned by Maseko and Makhubu. The judge in their case argued that freedom of speech in Swaziland is limited by common law which prohibits public discussion of court cases which are under judicial consideration.  Most jurisdictions, including many in the SADC region, have ruled that this type of contempt of court charge is inconsistent with the principles of free expression except in limited circumstances. And even in such limited circumstances, the justification is to protect the court against imminent threats to the administration of justice, such as protection of the victim of a crime or of the rights of the accused.  It is not intended to be used for the protection of the court’s reputation.  The judge in Maseko and Makhubu’s cases ruled that preserving the integrity and dignity of the courts outweighed the defendants’ right to free speech.  


This ruling was both a violation of free speech and an overly broad interpretation of the common law.  Arguably, the way in which the court handled this case not only failed to protect the reputation of the court, but actually further damaged it, as is evident by recent events and international condemnation of the imprisonment of journalists in Swaziland. 

Secondly,the charge of contempt of court in this context is inconsistent with Swaziland’s 2005 Constitution and the international obligations to which the country has voluntarily agreed.  Freedom of expression is a fundamental human right, guaranteed both by Section 24 of the country’s constitution and the major international human rights treaties to which Swaziland is a party, including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (also known as the African Charter).Freedom of expression, in particular on matters of public interest, is not only a basic individual right, but is absolutely necessary for the establishment and preservation of a free and just society.  The UN Human Rights Committee has succinctly explained: “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.”  


In this instance, Maseko and Makhubu were arrested, shackled in court, and subjected to prolonged detention and a protracted trial because they dared to question the judiciary’s irregular handling of a legal case against a public servant who was arrested for executing his official duties.  

The charges that were brought against the two men were done so, ostensibly, to protect the reputation of the courts as administrators of justice.  But everyone should ask how charging a lawyer and journalist for their critical commentary of the judiciary and sending them to prison for two years serves to restore public confidence in the judiciary?

This case compels all of us to consider the consequences for Swaziland, or any country, if no one is allowed to question the actions of the judiciary.  What other mechanism exists to keep its power in check?  The actions of the court in this case represented a violation of free speech and only served to silence critics, but did not protect the administration of justice. Thirdly,Maseko’s and Makhubu’s rights to due process of law were repeatedly violated during the conduct of their arrest, trial, and sentencing.  After being arrested on March 18, 2014, both men were reportedly denied access to legal counsel, and the indictment proceedings against them were closed without cause despite requests by the accused that the proceedings be open to the public.  


According to credible reports, at that closed hearing both men were summarily remanded into custody without a court finding that such detention was necessary.  

Arguments that their detention was unlawful were ignored by the judge at two subsequent hearings and they remained in custody until a successful petition to the High Court. On April 6, 2014, a High Court judge reviewed the arrest warrants and found them unlawful, whereupon Maseko and Makhubu were released from custody.  On April 7, the Chief Justice, who issued the original arrest warrants, filed notice of his intent to appeal the High Court decision and, on April 9, both Maseko and Makhubu were re-arrested.  Domestic and international observers have noted that at several points during the course of their detention and trial, their rights to an impartial tribunal, access to counsel, and freedom from arbitrary detention were clearly violated.  With the current crisis in the judiciary, their appeal to the Supreme Court, which was scheduled to be heard sometime this month, will once again be postponed in what is yet another violation of their right to a speedy trial.

Finally, the judge who presided over this case refused to recuse himself even though he was a subject of the critical article that was the basis of the contempt of court charge.  This constituted a clear conflict of interest which would make it impossible for the judge to be impartial. And, although the same judge who convicted and sentenced them is now charged with “defeating the ends of justice” for his refusal to recuse himself in another case, Maseko and Makhubu remain in locked in prison.

As part of the United States’ participation in World Press Freedom Day, the U.S. Department of State again conducted a ‘Free the Press’ campaign to raise awareness of restrictions on the media and on freedom of expression around the world.  

The campaign, which began on April 28 and ran each day throughout the week, highlighted cases of imperiled reporters from around the world who are imprisoned, harassed, or otherwise targeted for doing their jobs by reporting the news. Because of the clear human rights violations involved in the Masekoand Makhubu cases, their arrests and convictions were included in this campaign.  

The United States government strongly believes that media freedom keeps societies and economies vibrant, energetic, and healthy and that we all suffer when the free flow of news and information is cut off.  A free press ensures an informed electorate, an engaged community, protection against theft or misuse of public funds, and responsible personal behavior to promote good health for all.  

Investors make job-creating decisions and government leaders can better address social challenges based on good and reliable information.  Without a free and independent press, we risk surrendering ourselves, our communities, and our countries to unchecked human ambition, greed, and corruption.   We risk losing the information we need to make informed choices about our lives.Swaziland’s development is threatened if dissenting voices are forced into silence, whether through political, economic, social, or legal oppression.  And yet we know that journalistsin Swaziland and around the world are under increasing assault for attempting to do their job of providing accurate, timely and essential information.  

So today, and every day, we honor courageous media practitioners for their dedication and determination to fulfill their obligation to protect freedom of expression as enshrined in the Universal Declaration of Human Rights and the Constitutionof Swaziland, and we call for their release.As U.S. Secretary of State John Kerry said in his address at the Journalism Security Conference in January 2015, “[we] know that [they are] not going to give up and [we] have great confidence in the future of press freedom and the commitment of journalists of every description to go out and find the truth and report on it no matter where they are and what the resistance and no matter how stark the danger, no matter how many efforts are made to shut [them] down."

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