Swaziland
into his chambers and charged them
both with contempt of court. On 17
March, police picked up Maseko from
his law firm and raided Makhubu’s
home and that of his parents. Makhubu
was not at either residence, so he surrendered himself the next day.
In their defence, Makhubu and Maseko
invoked Section 24 of Swaziland’s Constitution, which guarantees “a right of
freedom of expression and opinion” and
states, “A person shall not, except with
the free consent of that person, be hindered in the enjoyment of the freedom
of expression, which includes the freedom of the press and other media…”2
Subsequent clauses of the constitution, however, restrict this right, stating
it should be balanced with a consideration of what is “reasonably required in
the interests of defence, public safety,
public order, public morality or public
health.”3 Therefore, freedom of expression in Swaziland is not absolute and
the Constitution is worded so broadly it
is difficult to define, for example, what
measure of public morality is being violated.
Pansy Tlakulu, the United Nations’ Special Rapporteur on Freedom of Expression and Access to Information and
Commissioner of the African Commission for Human and People’s Rights
(ACHPR) embarked on a fact-finding
mission in Swaziland in 2014. During
her visit she met the families of the incarcerated editor and columnist. However, Commissioner Tlakula was not
able to visit Makhubu and Maseko as
prison authorities at the Big Bend Correctional Centre refused her entry.
2
The Constitution of the Kingdom of
Swaziland Act, 2005 section 24, sub section 2
3
The Constitution of the Kingdom of
Swaziland Act, 2005 s24 ss (3) p (a).

62

So This is Democracy? 2014

The arrest and trial were marked by
injustices including: a clear conflict of
interest, since the presiding judge was
named in one of the articles; the original arrests occurred under defective
warrants; the pair were denied access
to their lawyers; and the summary proceedings were conducted behind closed
doors.
Ultimately, the presiding Judge, Mpendulo Simelane, found Makhubu and
Maseko guilty as charged and his judgement and sentencing on 17 July 2014
sent shockwaves amongst Swaziland’s
media fraternity and free expression activists around the world. Simelane levied a hefty fine of US$10,000 on both
the Swaziland Independent Publishers
and The Nation - fining both a publisher
and publication was previously unheard
of in the jurisdiction. And, he went on
to convict Makhubu and Maseko to two
years in jail without an option of a fine.
This came in the wake of the May 2014
Supreme Appeal Court sitting, where
the judges set precedent in another case
involving Makhubu and the Swaziland
Independent Publishers. Both were
charged on two counts of contempt of
court for two articles in The Nation, one
published in November 2009 (count
one) and one published in February
2010 (count two). The appeal judges
overturned the conviction for count
one, saying The Nation was asserting
its constitutional right to freedom of
expression. On the second count, they
reduced Makhubu’s harsh sentence of
two-years in jail to a fully suspended
sentence of three months and reduced
the US$20,000 fine against the publisher to US$3,000.
While the judge reduced the severity of
the sentence, the court’s devastating attitude toward media freedom was clear.
In his ruling, Judge Simelane said, “press

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