Swaziland: Editor back in court for criminal contempt of court charges

Editor of the privately-owned Nation magazine, Bheki Makhubu, who is facing criminal contempt of court charges for two articles published recently in his monthly magazine, has said the articles he has been charged for do not constitute contempt of court. The case returned to court on 21 April 2010 but was later postponed.

In his answering affidavit filed at the High Court of Swaziland against the charges instituted by the Attorney General (AG), Makhubu cited Article 24 of the Swaziland Constitution which guarantees the right to freedom of expression and opinion.

 

He contended that in addition, the constitution guarantees that a person shall not be hindered in the enjoyment of freedom of expression, which includes freedom of the press and the media.

 

“That is to say freedom to hold opinions without interference as well as freedom to communicate ideas and information without interference. I am also aware of the fact that Article 24(3) (b) (iii) recognizes that laws may make provision for maintaining the authority and independence of the courts.

 

“I respectfully submit that regard being had to the guarantee of freedom of expression in the constitution and having regard to the relevant case law in comparable jurisdictions, that no contempt of court offence has been committed by the publication of the articles in question,” Makhubu stated.

 

He said the opinion expressed in the articles in question fell well within the bounds of legitimate comment and criticism of the sort, which was not only tolerated but protected in other comparable jurisdictions.

 

“At the hearing of this matter, appropriate argument, by reference to other comparable jurisdictions, will be advanced in support of the contention that neither of the said articles discloses any offence.

 

“I also point out the articles in question contain both statements of fact and expression of opinion. Save in one aspect dealt with concerning the phrase ‘makhulu baas’, the Attorney General has not disputed any of the facts in the articles,” Makhubu said.

 

He went on to say his intention of writing the two articles in question was to ensure that judges perform their constitutionally mandated position and never intended to bring the judiciary into disrepute or scandalize it as suggested by the AG.

 

Makhubu said he had always understood that judges did not regard themselves as above criticism and that the law protects individuals who expressed such criticism provided it remains within certain limits. He said the criticism expressed was advanced in good faith and honestly-held.

 

“It was advanced out of genuine concern for democracy in the Kingdom of Swaziland and in the honest belief that such criticism was legitimate and within limits recognized the world-over including Swaziland.”

 

In his papers, Makhubu further questioned the jurisdiction of the Attorney General to prosecute the matter. He said in terms of the law, the Director of Public Prosecutions (DPP) was vested with the power to institute and undertake criminal proceedings against any person before any court.

 

“By contrast, I am advised and respectfully submit that the powers of the Attorney General, in terms of section 77 of the constitution, do not include the right to prosecute whether in his own right or acting under delegated authority,” he argued.

 

The Swaziland Editors Forum (SEF) has also filed papers at the High Court in support of Makhubu. In their papers, SEF said Makhubu was in the alleged offending articles exercising his right to freedom of expression and opinion through the medium of the press and media by communicating the opinions he held and the information he had with the public.

 

The Media Institute of Southern Africa (MISA) Swaziland is working closely with Makhubu and the Nation to successfully defend the case.

 

Background

 

The charges against Makhubu and the Nation followed two articles, both authored by Makhubu, carried by the magazine in November 2009 and February 2010. In the November 2009 article, Makhubu criticized the Supreme Court judges following their judgement in a case in which pro-democracy organizations approached the Supreme Court early in 2009 to ask for the judges’ opinion on whether the Swaziland constitution allowed for political parties. The judges, in the majority decision, were dismissive of the question. Only one judge dissented.

 

In the second article carried in the February 2010 issue of the magazine, Makhubu commented on a speech by the Chief Justice, Michael Ramodibedi, he made during the official opening of the High Court in January 2010 in which he told his peers at the High Court that he was the ‘Makhulu Baas’, a slang meaning he was the boss. The CJ used this phrase to publicly reprimand High Court judges following a judicial crisis in which the judges wanted to meet to discuss the High Court roll without the sanction of the CJ as dictated by laid down procedure. //End//

 

- April 29, 2010 by MISA

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Source: www.misa.org (received via Email Alert on 29.04.2010)