It is not surprising that editor of The Nation magazine, Bheki Makhubu has been jailed for his passionate defence of the right to free speech, with his magazine being pushed to the brink of closure – given Swaziland's fragile democracy.
His case has attracted much interest across the small borders of Swaziland and around the world.
For Swaziland's fragile democracy, Makhubu—incarcerated for more than ten months now—stood for something more than just an independent voice—he was the flickering light for press freedom. He was unafraid to speak truth to power, representing hope for the future of independent journalism.
Although the editor of a very small magazine, The Nation, he was outspoken and critical of the status quo, despite that the press in Swaziland is largely expected to toe the line and be the lapdog than the watchdog.
Thus, Makhubu created a fine reputation for himself and his magazine, as a defender of human rights and for years he has been using his opinion pieces to call for the authorities to respect the constitution of the country.
For the authorities, Makhubu was a constant thorn in their sides. And so, he was arrested last year for speaking his mind, and convicted on July 17, 2014 by the High Court of Swaziland for scandalising the courts.
This was for an opinion piece he wrote on February 2014, criticising the blatant abuse of power by Chief Justice Michael Ramodebedi.
Makhubu and human rights lawyer Thulani Maseko—who also authored an article in the March 2014 edition of the magazine in which he challenged the judiciary to uphold the rule of law while criticising Ramodidebi's conduct—were both charged with contempt of court for raising an alarm in the manner that the chief justice had sent a civil servant to jail without trying him or without the presence of a lawyer.
Makhubu's (and Maseko) crime was to jump to the defence of Chief Government Vehicle Inspector Bhantshana Gwebu who applied the letter of the law. He detained the vehicle in which Judge Esther Otta was being driven in—for the vehicle was not authorised.
Gwebu was promptly thrown in jail, without legal representation, for contempt of court.
In a country whose media environment is classified by most rights groups as not free, this case should not be too surprising, except of course in the manner that it was handled. Makhubu and his magazine had already been fined heavily by the same court for a previous article he had published. The initial penalty in the lower court ordered him and his magazine to pay over R400 000 within three days or else the editor would be sent to jail for two years.
The message was loud and clear—and shows a tightening of the noose over press freedom. Although the sentence was overturned on appeal in May last year, the judiciary had already fired its warning shots.
There are more than 30 pieces of legislation in place that restrict the operations of the media, which results in harassment and intimidation as well as strained relations and mistrust between government and the media. Last year, The Times of Swaziland was also fined heavily after it lost a controversial defamation case and was ordered to pay E550 000 in damages—the highest in the history of defamation cases in the kingdom.
Although a small magazine, The Nation is hailed for its critical outlook on political issues and being the independent voice. Therefore reigning it in would be a huge bonus for the authorities, hence the contempt of court case was viewed as an attempt to teach all journalists in Swaziland a lesson, because 'journalists think that just because they have the power of the pen they can write anyhow under the guise of freedom of expression', said the judge when sentencing the two.
To drive this point home, the Judge Mpendulo Simelane refused to recuse himself from this case despite that he was personally involved in the matter as he is mentioned in the articles in question. He meted out a harsh sentence of two years in prison—a sentence without precedence in Swazi law, and an act that signalled the crumbling state of freedom of the press in the Kingdom, although more importantly highlighting the lack of independence of the judiciary.
The result had a chilling effect on press freedom in a country already afflicted by its self-censorship and ultimately, Makhubu's arrest meant that the media had been effectively silenced.
The sentence, without the option of a fine, was intended to send a strong warning to journalists in Swaziland that not even legitimate criticism would be tolerated, and was largely viewed to not just be about the chief justice and his determined pursuit to silence his critics and those standing in his way, but for journalists to toe the line using the fearless Makhubu as an example.
The Media Institute of Southern Africa (MISA) Swaziland chapter national director, Vuyisile Hlatshwayo is in agreement with this view, pointing out that for its severity, it was clearly intended to send a message to those who would engage in future criticism of Swaziland's judiciary.
He said the judgment "criminalises freedom of expression in Swaziland. This is aptly demonstrated by the scathing tone and language of the presiding judge, Judge Mpendulo Simelane."
Hlatshwayo added; "In his judgment, he makes it loud and clear that the objective of the sentence is to silence like-minded journalists thinking of questioning the conduct of judicial officers. According to this judgment, judges are God's gift to the Swazi nation who cannot do anything wrong in their administration of justice."
The State controls the media in Swaziland, and of late even the independence of the privately-owned Times of Swaziland is baffling more than it is evident. Critics have long pointed to the newspaper's business interests as being the reason for its soft stance on government.
The state already has a grip on the broadcast media, which is more censored through the Public Service Announcement Guidelines which require Members of Parliament to get approval from their chiefs before they can be interviewed on radio.
Although the Swazi Observer is viewed as a state paper despite the fact that it does not get any funding from the state, it surprised many with its critical reporting of the case.
The independence (or lack thereof) of the Swazi media can be assessed in its lack of criticism of the chief justice and the judiciary throughout the trial and lack of solidarity behind Makhubu.
For its part, the press—in particular the Times—could only cover the case in court than attempt any independent coverage, leaving Makhubu out on his own to fight for freedom of expression and of the press.
The consequence is that press freedom has been dealt a blow, and journalists have been intimidated into silence and fear, and continued self-censorship.
The contempt of the court case aside, there has been some good journalism from some quarters, and often when that has happened, journalists have been harassed, either from those affected or as often the case, the police.
As the Makhubu case has exposed, the media cannot rely on the courts to perform their duty and safeguard the interests of free speech; but rather that they can expect heavy penalties, which then leads to the media choosing to play it safe.
Either way, the people are the big losers for this case shows an affront to free speech and a contempt for which the media is held by those in authority; not least the rule of law itself.
Following a surprise turn of events in April 2015, sparked by the chief justice's refusal to sanction a warrant of arrest for the then Minister of Justice and Constitutional Affairs, Sibusiso Shongwe who is largely viewed to have been his ally, the chief justice holed himself in his house when a warrant for his arrested was issued—for defeating the ends of justice. He locked himself in his plush judges' complex, refusing to come out to be arrested, for over a month. He has subsequently been suspended, and by the time of this report, he was to be impeached by a tribunal.
Mbongeni Mbingo is Managing Editor of the Swazi Observer Group.