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Swaziland Press Freedom: The case of Bheki Makubu and the Nation magazine
By Richard Rooney
Swaziland Press Freedom: The case of Bekhi Makhubu and the Nation magazine
By Richard Rooney
Introduction In April 2013 Bheki Makhubu the editor of the Nation magazine and its publishers, Swaziland Independent Publishers, were convicted of ‘scandalising the court’ after two articles criticising the judiciary were published in 2009 and 2010. Makhubu and the publisher were fined a total of E400,000 (US$44,000) by the Swaziland High Court, of which half had to be paid within three days or Makhubu would immediately be sent to jail for two years. Both Makhubu and the publisher have appealed the conviction. Part of the appeal concerns a matter of law relating to the way the case was brought to court. This paper is not concerned with that part of the case. It is, however, concerned with the press freedom and human rights issues the conviction throws up. The wheels of justice grind very slowly in Swaziland and it is unlikely that the appeal in the Supreme Court will be heard before at least November 2013, and possibly much later still. By the time the appeal is heard many people will have forgotten what all the fuss is about. The purpose of this paper is to bring together details of the story so far (May 2013). It is not a critique of the decision: that can come later. It is an attempt to bring under one cover all the available information on the case in order to assist those people in the future who might need a quick ‘primer’. Section 1 of the paper summaries the judgement of the High Court case, detailing the background to the offence and the penalties imposed. Section 2 reproduces the two articles complained of, using text supplied by the High Court of Swaziland. Section 3 gives a more detailed account of the judgement of the High Court, reproducing the main points of Judge Bheki Maphalala’s summary of the case. Section 4 covers the reaction to the judgement. This includes material from a large number of international organisations and groups within Swaziland which campaign on human rights issues. The section also summaries some of the reactions from journalists who work in Swaziland. They admitted to their readers they were ‘scared’ by the High Court ruling. Section 5 gives details of the appeal made by Makhubu and Swaziland Independent Publishers. They say the decision was both unlawful and constitutional. Section 6 gives an insight into the history of the Nation magazine and its previous significant run-in with the state authorities. In May 2001 Swaziland police raided offices of the Nation in
defiance of the kingdom’s High Court. The Nation, which had been banned by the government earlier that month, because it had not been properly registered as a newspaper. Section 7 is the first of two sections detailing the background to Swaziland. This section studies the media freedom landscape in the kingdom where although the constitution provides for freedom of speech and of the press, the king may waive these rights at his discretion, and the government often restricts these rights. Section 8 gives background to the human rights situation in Swaziland. The constitution became effective in 2006, but the ruling elites have largely ignored its provisions. This means, for example, that although the constitution allows for freedom of assembly, political parties remain banned. The paper concludes with an appendix which is a digest of articles from previous editions of the Nation magazine that are available on-line. The cover line of the Nation states it ‘speaks truth to power’, and the articles show this is not an idle boast. 1: Summary The Swaziland High Court on 17 April 2013 convicted Bheki Makhubu, the editor of the Nation magazine, and its publisher Swaziland Independent Publishers of contempt by scandalising the court. In his judgement (Criminal case No: 53/2010), Judge Bheki Maphalala said the case related to two articles written by Makhubu and published by the Nation in November 2009 and February 2010 that had ‘a tendency to bring the administration of justice into disrepute. He went on to say section 24 of the Swazi Constitution that related to freedom of expression and opinion had been taken into consideration but he found ‘judges and courts are open to criticism provided that the criticism is fair and legitimate and does not exceed accepted boundaries’. Judge Maphalala ruled that the articles exceeded the ‘accepted boundaries’ and therefore Makhubu and Swaziland Independent Publishers were guilty of Contempt by Scandalizing the Court. Judge Maphalala sentenced both the publisher and Makhubu to a fine of E100,000 (US$11,000) in relation to the November 2009 article and another E100,000 in respect of the February 2010. He said that half the total E400,000 fine would be suspended, ‘for a period of five years on condition that they are not found guilty of a similar offence within the period of suspension’. He ordered that the fine should be paid within three days and failure to do so would mean Makhubu would be confined to prison for two years. An appeal to the Supreme Court was lodged on 23 April 2013. No date for the hearing has been set, but, due to the law courts’ calendar , it is unlikely to be heard before November 2013.
2: The articles
These are the articles that were complained about. The text is as published in the High Court judgement. The first article appeared in the Nation in November 2009 under the heading: Will the judiciary come to the party? 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. Could the appointment of the four eminent jurists signal a change of how the judiciary seeks to participate in our changing society. 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. 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 whet her 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. 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. 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 21 st century values which we all live by today. 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. 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. 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. 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.
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. 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. The question thus arises again: what does the appointment of these judges mean, in real terms, to jurisprudence in Swaziland? 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? 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. 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.... 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. As the controversial Judge John Hlophe of South Africa is quoted to have once said: ‘Sesithembele kunina ke’. 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. The Chief Justice and Justice referred as ‘name given’ in some paragraphs is Michael Ramodibedi. It is unclear why the judge’s ruling names him in some paragraphs, but not in others. 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. Here is a man, honoured by King Mswati III ... behaving like a high school punk. 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!
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. 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) 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. 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! 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). 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. 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. Because he is a well educated man ... he will become the man he is most certainly not right now. 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. 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.”
3 The judgement The High Court judgement which runs to 91 pages looked in some detail at the case law: how other courts across the world in the past had defined ‘scandalising the court’. This was in order to justify the Swaziland High Court’s decision to level the same charge against Makhubu and the Nation and then to convict them. Judge Maphalala ruled that Makhubu and the Nation were not protected by the Constitution of Swaziland. He stated, ‘The conclusion to which I have arrived that both articles are
contemptuous does not undermine or detract from the fundamental rights and freedoms guaranteed by the Bill of Rights in chapter III of the Constitution of 2005.’ He stated that S24 (3) (b) (iii) provided that a person’s right of freedom of expression and opinion was not absolute and it provided that ‘any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably required for the purpose of maintaining the authority and independence of the courts’. Put simply, the judge argued that S24 did not allow people to undermine the ‘authority and independence of the courts’. He stated that this section referred to ‘any law’ that might be enacted that would be inconsistent with the right to freedom of expression. He said the ‘law’ he was using here was the ‘contempt of court’ law. The following is Judge Maphalala’s verbatim judgment with paragraph numbers:  …. Any act done or writing published which is calculated to bring the court or a judge of the court into disrepute constitutes contempt of court. The test is whether the offending conduct viewed contextually is likely to damage the administration of justice. In arriving at an appropriate decision, the court has to balance the right of freedom of expression to the protection of the administration of justice.  Section 24 (3) (b) (iii) of the Constitution provides for the right of freedom of expression and opinion. However, this right is limited to the extent that is reasonably required for the purpose of “maintaining the authority and independence of the courts”. Accordingly, this right is not absolute as its counterpart in the United States of America. Our law envisages a balancing of the right of freedom of expression in a democratic society and the limitation imposed in favour of preserving the authority and independence of the Courts.  It is a trite principle of our law that no wrong is committed by any member of the public who exercises the ordinary right of criticising an individual judge or the administration of justice in good faith and in a fair and legitimate manner. It is only when the bounds of moderation and of fair and legitimate criticism have been exceeded that the court has power to interfere.  The purpose for punishing contempt of court is to protect “the fountain of justice” by preventing unlawful attacks upon individual judicial officers or the administration of justice which are calculated to undermine public confidence in the Courts. Contempt of court is a public remedy and it is not intended to vindicate the reputation of an individual judge or to assuage his wounded feelings. It is intended to maintain public confidence in the administration of justice, and to ensure that it is not undermined. It is important that the authority and dignity of the Courts as well as their capacity to carry out their functions should always be maintained. The protection and maintenance of the rule of law and the rights and freedoms guaranteed by our Constitution depend for their efficacy in the public confidence of the administration of justice. It is against this background that the Constitution provides for a limitation in the right of freedom of expression and opinion in section 24 (3) (b) (iii). Such a limitation is reasonably required for the purpose of maintaining the authority and independence of the Courts.
 In the first count [the November 2009 article] the judges of the Supreme Court are accused of not being impartial and that their decision not to allow multipartism in this country was actuated by an improper agenda which they were pursuing and that it was not based on law and their conscience. Such a publication has a tendency of bringing the administration of justice into disrepute.  There is a limit beyond which Courts, in their liberal interpretation of the Constitution, could bring about multipartism in the face of section 79 of the Constitution which expressly provides that “the system of government for Swaziland is a democratic, participatory, tinkhundla – based system which emphasises devolution of State power from the Central government to tinkhundla areas and individual merit as a basis for election or appointment to public office”. The judgment of the Supreme Cou rt shows that proponents of multipartism may well be advised that their remedy does not at all lie in the Courts but with the Swazi Nation as a whole by amending the Constitution in accordance with Chapter XVII thereof.  The Article in the second count [February 2010] is a scurrilous attack on the Chief Justice as a Judge of this court. The article unlawfully and intentionally violated and impugned his dignity and authority; it was calculated or intended to lower his authority and interfere with the administration of justice. They accused the Chief Justice of behaving like a high school punk, a street punk; and that he lacked decorum and integrity and that he was extraordinarily arrogant. He was further accused of contesting the political position of the highest authority in the country by calling himself Makhulu Baas; this allegation is treasonous if not subversive in the extreme. Similarly, it was alleged that the Chief Justice does not inspire confidence to hold such an office in the judicial hierarchy and further doubted if his appointment was eligible. The Chief Justice was accused of bringing the Judicial system in this country into shambles and, that there is a high incidence of murder perpetrators in this country which he has failed to bring to justice.
4 The reaction to the judgement Reaction to the judgement was both swift and widespread. Organisations and individuals within Swaziland and outside condemned the fine and possible imprisonment as savage and a contravention of the Swaziland Constitution. Among the organisations voicing concern were the Media Institute of Southern Africa, The Centre for Human Rights, Freedom House, Campaign to Protect Journalists, South African National Editors’ Forum and Reporters Without Borders. The Media Institute of Southern Africa called the sentence ‘brutal’. It said, ‘The Nation is the only publication speaking truth to power and is the voice of the voiceless in a country that is fast becoming a police state. The fine imposed by the judge is also a total clampdown on media freedom it sends a strong signal to the already censored newspapers and broadcast media.’ The Swaziland Solidarity Network said, ‘[T]he entire case is a witch hunt and a political manoeuvre on the country’s only independent magazine and the go vernment’s most fearless critic’.
The Centre for Human Rights in Swaziland was ‘shocked’ by the decision of the court. It said, ‘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 although independent, it is not immune from criticism. Section 24 of our Constitution provides for the freedom of expression.’ The People’s United Democratic Movement (PUDEMO), a political party banned in Swaziland, said, ‘This is disgusting and an affront to all that the courts should stand for. This judgement effectively shuts out the smallest door of freedom of expression that some had thought we had.’ Jabulani Matsebula, president of Swaziland’s Editors’ Forum (SEF), commenting to MISA 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 was ‘particularly disturbing because The Nation magazine is considered a credible independent voice in Swazi journalism’. Outside of Swaziland the criticism was harsh. Freedom House, an organisation based in the US that monitors human rights worldwide, called the court’s decision, ‘a blatant disregard for the constitutionally protected right to freedom of expression and is emblematic of King Mswati’s autocratic rule.’ In a statement it called the conviction, ‘a clear attempt to stifle media freedoms’. It said the sentence was, ‘a violation of Article 24 of the Swazi constitution, which protects freedom of expression. The sentence also imposes a disproportionate sentence to the alleged offense.’ Reporters Without Borders said in a statement, ‘This harsh sentence, which violates freedom of expression, was handed down by a court acting as plaintiff and judge at the same time. We urge the high court to respect Swaziland’s constitution, which guarantees media freedom.’ The Committee to Protect Journalists, a US-based media freedom organisation, said, ‘We condemn the court's heavy-handed interpretation of Swaziland's contempt of court provisions and its prosecution of one of the kingdom’s few independent media voices. Swaziland’s constitution protects freedom of expression and fair criticism of the judiciary - we would urge the appeals court to review Bheki Makhubu’s case with these provisions in mind.’ The South African National Editors’ Forum (SANEF) said, ‘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 to foster open debate, this judgement is more likely to engender doubt, criticism, and suspicion of Swaziland's courts than it is to create respect. ’ Meanwhile, working journalists in Swaziland reported that they were ‘scared’ by the ruling and had to be careful what they wrote. Phephisa Khoza, editor of the Swazi News, part of the Times of Swaziland newspaper group which is the major source of news independent of direct state control in the kingdom, wrote, ‘The sun has set on media freedom in the country.’
In her own newspaper she wrote, ‘As a journalist I find it very scary to write this piece. I do not know what those in charge of the administration of justice will perceive it as but the sentence on Bheki Makhubu and The Nation magazine is one of the harshest sentences to be handed down by our courts.’ Innocent Maphalala, editor of the Times Sunday, writing in his own newspaper, said, ‘I will not lie. I am not shaking as I write this. However, I am trying extra hard to choose my words carefully. I hope I succeed because if I fail…’ A regular writer for the Times Sunday, Qalakaliboli Dlamini, wrote in his column, ‘As I sit and contemplate my words, albeit carefully I just can’t seem to stop shaking. I am scared. ‘As a regular writer for this column I cannot help but think of what can befall me after putting together an article using my right to freedom of expression, and using my right as a Swazi citizen to highlight the ills of our government. ’ Vusi Sibisi, a writer for the Times of Swaziland who consistently criticises the ruling political system in the kingdom, wrote in his column, ‘For prolonged, agonising, minutes I stared blankly at the screen of my laptop, wondering if what I was about to write would be acceptable to the courts as a justifiable pursuit of my inalienable right to freedom of expression, enshrined in the national Constitution of the Kingdom of Eswa tini [Swaziland].’ He added, ‘But the sum total of the judgment against the magazine and its editor is that the bubble of the state’s long-drawn-out assault on the freedom of expression has finally burst out into the open.’ An editorial in the daily Times of Swaziland, said the High Court’s decision was an attempt to stop people voicing concerns about problems in the kingdom. The Times said, ‘[T]he decision to fine the editor of the Nation magazine 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.’ The Swazi Observer newspaper appeared on 22 April 2013 with a blank space on the Features and Opinion page under a headline, ‘Dear Judge Bheki Maphalala.’ MISA reported, ‘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.’ Writing in his newspaper a week later, Mbingo said, ‘I wish Bheki Makhubu had not paid the fine and been locked up. I mean this well of course. But the reality is that were he to accept the punishment, the world would suddenly sit up and take note of how our constitution and lady justice have been raped under the guise of scandalising the court.
‘Had Makhubu taken the punishment, I am sure that the message would have been as loud as the judgment and who knows then what the consequences would have been?’
5 The appeal Makhubu and Swaziland Independent Publishers lodged an appeal to the Swazi Supreme Court. The hearing is not likely to be heard until at least November 2013. The appeal paper stated the imposition of the sentence was unlawful and constitutional. It stated the court dealt with the sentence: Without advising the appellants that they had been found guilty of contempt; Without affording the appellants any opportunity whatsoever for adducing evidence in mitigation; Without hearing evidence whatsoever on sentence.
Makhubu argues that the sentence was thus imposed in breach of the most fundamental right to be heard on punishment, ‘and is the consequence of the procedure permitted and adopted by the court in direct conflict with the most basic rights of all accused people ’. Makhubu states the sentence, having been imposed without notice and without even hearing arguments, was so severe as to induce a sense of shock. Makhubu states his intention was to ensure that judges perform their constitutionally mandated position. Makhubu states it was never his intention to bring the judiciary into disrepute or to scandalise the judiciary. The Swazi Observer reported Makhubu said Attorney General Majahenkhaba Dlamini lacked the jurisdiction to prosecute him. He contends that Judge Bheki Maphalala erred in concluding that the present prosecutions were competent at the instance of the attorney general. He says the court ought to have held that both the attorney general (AG) and the director of public prosecutions (DPP) are constitutional institutions to whom separate and distinct powers are conferred and that the power to institute and undertake criminal proceedings is conferred by Section 162 (4) of the constitution on the Director of Public Prosecutions. Section 77 of the constitution, which stipulates the powers of the attorney general, does not include the right to prosecute whether in his own right or acting under the delegated authority. While Section 162 (5) envisages the power of the director of public prosecutions to delegate, this is only competent in relation to subordinate officers and the attorney general is clearly not a subordinate officer.
He argues that the prosecution at the instance of the AG and not the DPP was in conflict with Section 162 (6) of the constitution. The Swazi Observer went on to report that Makhubu claimed that no offence was committed. He alleged that Judge Bheki Maphalala erred in finding that the articles in question constituted contempt of court. Makhubu argues that the court ought to have found that no offence was committed. He says properly interpreted, the article entitled Will the Judiciary come to the party? as considered as a whole is strongly supportive of the principle of constitutionalism and the rule of law: Underscores the centrality and importance of the judiciary in upholding the constitution; Stresses the potential of the constitution and the judiciary to have a direct impact on the lives of the people.
With regard to the article Speaking my mind, Makhubu said the court ought to have had regard to the fact that it was unrelated to the performance of the chief justice on the bench and that as such was excluded from the definition of contempt of court. ‘Even of the criticism of the conduct of a judicial officer, unrelated to his or her conduct on the bench, is capable of constituting contempt of court (which is denied) the present article was based upon undisputed facts, namely that the chief justice referred to himself as “Makhulu Baas”.’ He said that the phrase ‘Makhulu Baas’ was a Fanakalo Phrase meaning ‘Big Boss.’ 6 Background: Nation’s previous history This present case is not the first assault by the Swazi state on both Makhubu and the Nation magazine. The last massive attack (there are many smaller ones nearly every week of the year) on free speech in Swaziland also targeted the Nation magazine and Makhubu. In May 2001 Swaziland police raided offices of the Nation in defiance of the kingdom’s High Court. The Nation, which had been banned by the government earlier that month, because it had not been properly registered as a newspaper, had received the court ’s approval to return to publishing. The news agency Afrol reported at the time, ‘The uniformed policemen insisted that the outspoken magazine was still technically banned and said they had instructions to confiscate all copies of its June edition. Policemen also reportedly confiscated over 5,000 copies of the publication from street vendors in the capital Mbabane and other major centres such as Manzini and Piggs Peak.’ Afrol added, ‘The Nation is one of two independent publications banned by Swaziland Public Service and Information Minister Mtonzima Dlamini on World Press Freedom Day on May 3  in an apparent clampdown on journalists critical of the kingdom’s monarchist system
of government. ‘Dlamini banned the Nation and weekly newspaper Swazi Guardian in an extraordinary gazette, citing Section 3 of the Proscribed Publications Act of 1968, which gives his office unlimited powers to ban or suspend publications that do not conform with “Swazi morality and ideals”.’ Afrol reported, ‘Both the Guardian and the Nation are known to support the multi-party democracy movement and have both been critical of King Mswati III’s decision to govern by decree. All political parties have been banned in Swaziland since the suspension of the kingdom's constitution in 1973.’ In a later report Afrol gave more details of the manner in which the banning was implemented. ‘The initial banning, published in Extraordinary Government Gazette 63, sparked police blockades and raids against retail outlets selling the publications,’ Afrol reported. ‘Nation editor Bheki Makhubu confirmed that uniformed policemen raided his offices on Tuesday evening and attempted to confiscate all copies of the magazine’s June edition. Police also reportedly harassed magazine vendors and retailers in Mbabane and the commercial city of Manzini, before confiscating early copies of the magazine.’ The banning saw police impound the Guardian as its delivery trucks crossed into Swaziland from its printers in South Africa. Afrol said the Guardian ceased publication of its weekly newspaper, but the Nation continued publishing. In an earlier report Afrol told how police had arrested the Guardian’s editor, Thulani Mthethwa, and drove him to police headquarters in Mbabane where he was interrogated at length over stories in his newspaper about activities in King Mswati III's palace. He was released after several hours. The Guardian had reported on King Mswati III’s health, as well as on rumours that he was poisoned by his first wife. The Guardian had earlier published a photograph of the queen crying at the Matsapha airport as she prepared to board a plane for London, allegedly because King Mswati III had expelled her from the royal palace. The claims were that Queen Mngomezulu was ‘driven to the Lozitha Palace and questioned about her role in the suspected food poisoning’ of King Mswati III. Palace insiders had said ‘that Mswati complained of stomach cramps immediately after eating a special breakfast prepared by Mngomezulu’. Afrol went on to report that senior journalists at both publications had previously been detained and questioned by police, who demanded that they reveal their sources on reports critical of the kingdom’s ban on free political activity.
7 Media freedom in Swaziland
There are two newspaper groups in Swaziland: the Observer Group, owned by the conglomerate Tibiyo Taka Ngwane that runs businesses and investments on behalf of the king. The group’s newspapers, the daily Swazi Observer and the Weekend Observer are generally viewed as ‘state-controlled newspapers.’ The other newspaper group is the Times of Swaziland which is owned by the Loffler family based in Namibia. It publishes the daily Times of Swaziland, the Swazi News (published Saturday) and the Times Sunday. These newspapers are the only major news sources in the kingdom free of government control. While independent of government the Times newspapers nonetheless exercises strict self-censorship, especially when reporting the activities of the king and has occasionally been revealed to deliberately distort reports to deflect criticism away from the king. In this context, the Nation Magazine is the only regular publication that is critical of the ruling elites. Newspapers in Swaziland share similar characteristics in editorial content. The government, selected by the king, dominates the news agenda and very few other groups are allowed to communicate through the news media. A report written by Mary-Ellen Rogers for MISA in 2011 found that 47 percent of all voices heard on democratic issues and governance matters came from the government. The second most popular voice on these issues was trade unions, representing just 11 percent of all sources. Rogers concluded this overwhelming dominance of government sources demonstrated there was little diversity of voices in these stories and the voices of ordinary citizens, especially the poor and marginalised, were severely underrepresented in stories. In the context of a kingdom that allows few human rights it is unsurprising that media are severely restricted in Swaziland. It is estimated that there are more than 30 pieces of legislation in place that restrict operations of the media. Despite the 2005 constitution which contains a Bill of Rights and guarantees freedom of expression and freedom of the press and other media, none of these laws have been repealed. The US State Department in its latest annual report on human rights in Swaziland published in April 2013 stated that although the constitution provided for freedom of speech and of the press, the king may waive these rights at his discretion, and the government often restricts these rights. The prime minister and other officials constantly warn journalists that publishing material regarding political issues or criticising the royal family could be construed as acts of sedition or treason. The report stated, ‘The law empowers the government to ban publications if they are deemed prejudicial or potentially prejudicial to the interests of defense, public safety, public order, public morality, or public health’. In addition to external censorship, threats and harassment, media houses engage in high levels of self-censorship. Research conducted by MISA Swaziland in 2008 and based on interviews with media practitioners concluded there was wide spread censorship and selfcensorship in media newsrooms in two main areas. The first was the position of the monarchy
in a kingdom that is non-democratic. The second was the poor state of the economy and the financial circumstances in which private media in Swaziland must operate. The overwhelming concern of the media houses was its relationship to monarchy. There is ample evidence, both historical and public, that the king can (and will) close down publications if he wishes. This power was demonstrated in March 2007 when a threat was made to the Times Sunday after it published a report sourced from an international news agency that contained material critical of the king. The second major cause of self-censorship in Swaziland related to the economy. It is very difficult to make a profit legally in Swaziland and the media industry recognises this as much as anybody. About 70 percent of Swaziland’s population of one million earn less than E14 per day (US$2). They cannot afford to buy newspapers and are generally excluded from the equation when privately owned media houses are making their business plans. It follows that there is an extremely small pool of advertisers in Swaziland and media houses need every advertiser they can get and this gives a potential power to the advertiser. A threat to withdraw vital funding from the media house has to be taken seriously and this compromises editorial content. Despite its firm control over the media, the Swaziland Government has found it difficult to restrict the Internet, even though the Swazi Parliament has called for restriction to be made on what can be published online.
8 Background: Human rights in Swaziland Swaziland finds itself in a confusing situation regarding its new constitution. The constitution became effective in 2006, but the ruling elites have largely ignored its provisions. This means, for example, that although the constitution allows for freedom of assembly, political parties remain banned. In October 2012, the House of Assembly passed a vote of noconfidence in the government and according to S 68 and S 134 of the constitution King Mswati was obliged to dismiss the government, but he choose not to do so. The House of Assembly was forced to reverse its decision and the government remained in power. Swaziland is a closed society where there is limited freedom of association, freedom of expression or freedom of action. Cultural norms restrict what people can say and how they behave and cultural elites can decide what is permissible or what is ‘un-Swazi’ and therefore impermissible. Journalists speak of the considerable restraints they work under and they are regularly followed by police. Under Swazi law and custom, which in practice takes precedent over the constitution; all powers are vested in the king. Although Swaziland has a prime minister who is supposed to exercise executive authority, in reality King Mswati III, who has ruled since 1986, has ultimate authority over the cabinet, legislature, and judiciary. The king appoints 20 members of the 65-member house of assembly and approves all legislation that parliament passes. Political parties have been banned in the country since 1973.
International observers concluded that the most recent parliamentary elections held in 2008 did not meet international standards. The US State Department in its report published in April 2013 concluded, ‘The three main human rights abuses were police use of excessive force, including use of torture, beatings, and unlawful killings; restrictions on freedoms of association, assembly, and speech; and discrimination and abuse of women and children. ‘Other human rights problems included arbitrary arrests and lengthy pretrial detention; arbitrary interference with privacy and home; prohibitions on political activity and harassment of political activists; trafficking in persons; societal discrimination against members of the lesbian, gay, bisexual, and transgender (LGBT) community and persons with albinism; harassment of labor leaders; child labor; mob violence; and restrictions on worker rights. ‘In general perpetrators acted with impunity, and the government took few or no steps to prosecute or punish officials who committed abuses. ’
3 May 2013
APPENDIX Digest of articles from the Nation The Nation magazine is a small-circulation monthly magazine published and circulating in Swaziland. It is largely unavailable outside of the major towns and cities and does not reach beyond the Swazi borders. It is almost impossible for most people to get copies of the Nation, however much they might wish to do so. For a short time the Nation had a website and it is still possible to see a small number of the magazine’s articles there today ( click here). Some other articles (or extracts from articles) also exist online, thanks to social media sites. Below are links to some articles from the Nation that are available online. To access them, click on the dates. The cover line of the Nation states it ‘speaks truth to power’, as these articles show, it is not an idle boast. King’s office above the law Aaron Mkhondvo Maseko, who has never been charged with stock theft, had his cattle taken away from him because they allegedly belonged to the King. On being accused of a criminal offence Maseko was unconstitutionally presumed guilty and instantly punished. His guilt or otherwise may never be proven in a court of law. Maseko allegedly stole an undisclosed number of cattle from the King and despite that he had not been tried or convicted by a competent court of law, he lost all of his livestock. As the legal process went on, his matter contributed to the sacking of Justice Thomas Masuku, whose finding on the matter raised allegations that he had insulted King Mswati III. Nation, February 2012 A country burns as King Mswati reaches milestone On his 25th year on the throne, King Mswati III delivered a country that is literally broke and on the brink of being declared a failed state. It was a year that witnessed the highest number of protest marches in the history of the country. The protesters, mostly workers and students, poured into the streets to force the King to relinquish absolute power and end the ban on political parties. Despite all the challenges the country is facing, the King’s closest allies saw it fit to host a mini-celebration of what was meant to be a national pride - the Silver Jubilee. Nation, January 2012 Why Tibiyo won’t pay taxes There is mounting pressure on royal conglomerate Tibiyo Taka Ngwane, the organisation that to the ordinary man in the street is simply a piggy bank for the royal family, to pay corporate taxes to government. Essentially, Tibiyo manages projects and undertake investments
purportedly on behalf of the Swazi nation but for the primary benefit of the royal household. Tibiyo derives its income through dividends from the investments in various companies. It has a 50% stake at the Royal Swaziland Sugar Corporation, 40% shares at Ubombo Sugar, 39% at Royal Swazi Spa, 40% at Bhunu Mall in Manzini, 40% at Swaziland Beverages, 41% at Tibiyo Insurance Brokers, among others. It wholly owns such companies as the Swazi Observer newspaper, Dalcrue Agricultural Holding, Tibiyo Leisure Resorts trading as Royal Villas. Nation, January 2012
Speaking my mind: 1 Lawyers in the country returned to work last month after a protracted strike that had lasted just over three months to find a judiciary that has completely collapsed. It has been destroyed by the very people entrusted with running our court system who have used their privilege to indulge themselves in the most vile behaviour. Our judiciary has been raped in a manner that would make even a seasoned whore blush. While the problems in our judiciary can be traced back to November 2002 when the prime minister issued the infamous November 28 statement, it was the arrival of Chief Justice Michael Ramodibedi that finally broke the camel’s back. Calling himself makhulu baas of this country, Ramodibedi has done everything in his power to undermine the last of what was a social order in this country and, when he finally goes back to Lesotho, he will look back at the people of Swaziland with great satisfaction at the job he did and a contempt we thoroughly deserve. Nation, December 2011 JSC did ask DPP to explain Masuku’s acquittal Now that it is a matter of public record that the powerful and arrogant Judicial Services Commission interferes and tries to influence judicial decisions, this magazine can reveal that the Director of Public Prosecutions, Mumcy Dlamini, was once asked by the JSC to explain how Pudemo president Mario Masuku was acquitted on charges of terrorism. Masuku was acquitted after hardly ten minutes in court in September 2009 after spending some 10 months behind bars following his refusal to apply for bail. He was facing charges for statements he allegedly made during the funeral of lawyer Musa MJ Dlamini, who was killed in a bomb explosion in 2008 at the Lozitha bridge. Following Masuku’s acquittal, at one of its meetings, the JSC debated the acquittal. It resolved that the DPP should be called to explain how she handled the case. Nation, December 2011
The case of Justice Thomas Masuku is still too fresh to be forgotten. A judgement relating to the King’s office made by High Court Justice Thomas Masuku was overturned by the Supreme Court. Chief Justice Michael Ramodibedi was particularly not happy about the comments that the King could not have spoken in a forked tongue. He castigated the judge for the comment. The matter did not end at the Supreme Court as it customarily should have. CJ Ramodibedi, in his capacity as leader of the JSC, proceeded to prefer disciplinary charges against Justice Masuku for the comments. The charges and guilty verdict against Justice Masuku has been widely viewed as an affront on the independence of
the judiciary and a clear message to other judges of the High Court. Before his sacking Justice Masuku had had problems and objected to the school master-style of leadership by CJ Ramodibedi who, among other restrictions, required judges to report to him before leaving their offices. Nation, December 2011
Insight: Our country is now a failed state It is most unfortunate, in fact, downright embarrassing that in this milestone year of King Mswati’s reign this country is now a basket case. What is most unfortunate about the King’s speech to parliament is that it does not recognize that Swaziland’s politics is not geared towards a people-friendly initiative that gives space for parliamentarians and workers to contribute to the revival of this country. Parliamentarians are simply paper pushers who legitimize what the leadership seeks to achieve. Workers and ordinary folks simply do as they are told, no questions asked. They are automatons. The Prime Minister Barnabas Sibusiso Dlamini has managed to turn into a fine art the system of patronage, sycophancy, bootlicking and blind loyalty. The record shows that he will not accept anyone to an important position in this country, whatever the qualifications, without a guarantee of absolute loyalty to what he believes in, whatever the cost. Nation, March 2011
Economy: It never rains but it pours The 2009 Forbes Magazine lists the head of state, King Mswati III, Africa’s remaining absolute monarch, among the richest royals in the world. The King’s wealth is estimated at $100 million excluding an alleged $10 billion which was put in trust in his name by the late King Sobhuza II. Although the country is undergoing a fiscal challenge, government, however, increased King Mswati III’s budget from E170 million last year to E210 million this year. This happens at a time when government, as advised by the IMF, is in the process of cutting salaries by five percent and freezing wages for the next three years to bring down the wage bill, the highest in the region, by five percent annually. Nation, March 2011
Speaking my mind: 2 Exactly, two years into office, the Barnabas Dlamini the prime minister has shown his hand. This time, he is stealing from the people, abusing the trust His Majesty bestowed on him. It is worth noting that this is the second time in a few months that King Mswati III has been betrayed by a person he trusted completely. Earlier this year, then Minister of Justice and Constitutional Affairs, Ndumiso Mamba was exposed for having an affair with an Inkhosikati [wife of the king]. Now, Barnabas Sibusiso Dlamini is stealing from the Swazi people and, according to an interview he had with the Times of Swaziland, is very arrogant about it. He is plundering the country. The Prime Minister and his cabinet team cut a deal for themselves, taking land in Mbabane at discounted prices. Nation, December 2010
King takes five percent of the budget! King Mswati III and the royal family will take a huge chunk of the national budget when government allocates money to the various state organs this month. The government has given the monarchy a monumental 159 percent increase in its allocation from last year. Sadly, this has been done illegally, as is becoming the norm with government not to follow the law. King Mswati’s budget is controlled through the Emoluments and Civil List Act. It has been completely ignored. In a country where 69 percent of the population lives below the poverty line, where the economy has remained stagnant for the last five years, King Mswati III and the royal family will take a whopping 5.3 percent of the national budget’s E9.5 billion this year. Nation, April 2008 Why the Nation published the King’s income In the same edition that the above article on King Mswati’s finances appeared, Bheki Makhubu explained to his readers why he decided to publish. Here is part of what he had to say. ‘As editor of this magazine I decided we should go ahead and publish. There are a few reasons for this. The first is that the issues discussed in our cover story are not confidential. They are there for the public record, as published by Majozi Sithole [the Finance Minister] in the Government Estimates for this year. ‘Anyone curious only has to go to the Ministry of Finance or any other agency and get a personal copy of where the numbers are printed. ‘Therefore, we are not doing anything underhand, as we may be accused, in publishing. ‘The second reason is that this information is what the public has a right to know about. When Sithole disburses money after reading the budget, he is dealing with public funds, whose spending every Swazi of whatever persuasion should be informed of. ‘The only thing that has happened here is that parliamentarians elected by the people chose not to discuss the matter. They are fully entitled to do so and, I strongly believe, Sithole expected to field questions and address the matter for the public record. ‘The third reason is that we wanted to highlight the illegality of this whole transaction. The problem with this country is that our leaders have found it very easy to work outside the law. ‘There are laws that govern how the monarchy is given money. These laws were assented to by the King himself because, at the time one supposes, he appreciated that people cannot operate as if they live in a jungle.’ Makhubu went on, ‘The fourth and most important reason we chose to publish, is that we do not believe we are scandalizing anyone, least of all King Mswati.’ He continued, ‘Why am I making apologies for publishing a story? It is because, despite the constitution and everything else, there is a real danger that we, at this magazine, could get
into serious trouble with the authorities for highlighting this development, despite that it is in the public domain. ‘That some idiot might rush to the King and twist our motive for publishing with a view to getting us closed down and out of jobs is well known to every Swazi. ‘Despite all the risk, however, we chose to publish because we believe that it is the right thing to do. It is a function of the media to act as we have. That the amount of money is downright obscene and given out illegally cannot be escaped by anyone.’ Nation, April 2008
ABOUT THE AUTHOR
Richard Rooney was associate professor at the University of Swaziland 2005 – 2008, where he was also the founding head of the Journalism and Mass Communication Department. He has taught in universities in Africa, Europe and the Pacific. His academic research which specialises in media and their relationships to democracy, governance and human rights has appeared in books and journals across the world. His writing regularly appears in newspapers, magazines and on websites. He was a full-time journalist in his native United Kingdom for 10 years, before becoming an academic. He has published the blog Swazi Media Commentary since 2007 and also has other social media sites that concentrate on human rights issues in Swaziland. He holds a Ph.D in Communication from the University of Westminster, London, UK. He presently teaches at the University of Botswana, Gaborone.
Publications from Swazi Media Commentary available online free-of-charge
2013. The beginning of the End? 2012, a year in the struggle for democracy in Swaziland This compilation of newsletters from Africa Contact in collaboration with Swazi Media Commentary contains an assortment of news, analysis and comment covering the campaign for freedom in Swaziland throughout 2012. These include the Global Action for Democracy held in September; campaigns for democracy spearheaded by trade unions and students and the continuing struggle for rights for women, children, gays and minority groups.
2012. The End of the Beginning? 2011, a year in the struggle for freedom in Swaziland This book looks at activities in the freedom movement in 2011. It starts with a section on the unsuccessful April 12 Uprising followed by separate chapters looking at events in each month of 2011, including the Global Week of Action held in September. They also highlight the numerous violations of rights suffered by the poor, by children, by women and by sexual minorities, among others, in the kingdom.
2011. Voices Unheard: Media Freedom and Censorship in Swaziland. This volume of pages from Swazi Media Commentary focuses on media freedom and censorship. It starts with some overview articles that set out the general terrain, moving on to look at repressive media laws. Other sections of this book relate the daily threats journalists in Swaziland face when they want to report, but are not allowed to.
OCCASIONAL PAPERS SERIES
No. 1. 2013. Cynicism Eats Away at Swaziland Journalism: The state of Swazi journalism, 2013 One thing that shines out about journalists and their editors in Swaziland is the deeply cynical way they operate. Swazi journalists claim to be upholders of fine ethical traditions of honesty and inquiry, but instead they are often publishing lies or playing with readers’ emotions to boost company profits. This article explores the state of newspaper journalism in Swaziland, a small kingdom in Africa, ruled over by King Mswati III, sub-Saharan Africa’s last absolute monarch. Editors are deliberately misleading their readers by publishing material that is intended to provoke controversy and reaction, even though they know it also contains lies. This is done in order to boost profits for owners.
No. 2. 2013. Swaziland Broadcasting Not For The People A review of broadcasting in Swaziland that demonstrates through research that radio in the kingdom only serves the interests of King Mswati III and his intimate supporters. All other voices are excluded from the airwaves. The paper contrasts a ‘public broadcasting service’ with ‘public service broadcasting’ and demonstrates that changes in the kingdom’s broadcasting cannot be made until it becomes a democratic state.
No. 3. 2013. Swaziland Media Need Code of Conduct for Covering Elections A review of how media have covered past elections in Swaziland highlighting a number of areas for improvement. The paper includes a suggested code of ethical conduct that Swazi journalists can adopt in order to improve performance.
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