Jun 30, 2015 | News
The ICJ welcomes the decision of the Supreme Court of Swaziland to uphold the appeal of imprisoned human rights defenders Thulani Maseko and Bheki Makhubu and ordering their immediate release.
“The decision marks a victory for the rule of law in Swaziland,” said ICJ Secretary-General Wilder Tayler. “We hope that this is but the first of many steps to come in restoring the integrity of the courts and reinforcing the respect for the rule of law that has undergone so much erosion in recent years.”
The ICJ considers that while the release of the two men is a necessary step for justice for the two men, alone it is not enough.
The government of Swaziland should ensure adequate reparation for their wrongful imprisonment.
More broadly, it must engage in legal and structural reforms necessary to ensure the fair and effective administration of justice, the independence of the judiciary and respect for human rights in the country.
Thulani Maseko and Bheki Makhubu were arrested on 17 March 2014 under contempt of court charges for having written articles criticizing the manner in which the then Chief Justice (CJ), Michael Ramodibedi, had handled the case of another defendant, Bhantshana Gwebu.
Mr. Gwebu had been arraigned before the CJ without legal representation, charge sheet or being informed of his rights to apply for bail.
The trial of Thulani Maseko and Bheki Makhubu was riddled with violations of basic due and fair trial principles, as affirmed by the UN Working Group on Arbitrary Detention (WGAD), which ruled on a complaint in Thulani Maseko’s case.
Background
The trial of Thulani Maseko and Bheki Makhubu resulted in their conviction and a two-year prison sentence It was improperly conducted before a presiding judge, Mpendulo Simelane, who was a potential witness and had a direct interest in the case.
They had been in custody since their arrest, save for a three-day release in June 2014, and were due for final release on the 17 July 2015.
The ICJ has previously issued a number of statements after conviction by the High Court, underscoring that the prosecution and trial Court’s judgment had constituted a breach of Swaziland’s obligations to respect the rights to freedom of expression and fair trial.
The UN WGAD opinion issued on 22 April 2015 held that the deprivation of liberty of the accused was arbitrary and in contravention of the Universal Declaration of Human Rights and Swaziland’s obligations under the International Covenant on Civil and Political Rights (ICCPR).
The WGAD also emphasized that Swaziland should release the accused and facilitate the enforceable right to compensation in accordance with article 9 of the ICCPR.
In the appeal hearing yesterday, the Crown conceded most of the legal arguments by defence counsel and in particular that Judge Simelane ought to have recused himself from presiding over the case.
The Supreme Court’s written judgment is expected to be issued at the end of the session of its sitting.
Read also:
Swaziland: ICJ condemns the harsh prison term imposed on Thulani Maseko and Bheki Makhubu
Swaziland: ICJ condemns the conviction of celebrated human rights lawyer and prominent journalist on charges of contempt of court
Swaziland: ICJ concerned at detention of human rights lawyer and journalist
American Bar Association’s statement
Contact:
Arnold Tsunga, Director, ICJ Africa Regional Programme, t +27 716 405 926 or +41 76 239 90 32 e: arnold.tsunga(a)icj.org
Matt Pollard, Senior Legal Adviser, ICJ’s Centre for the Independence of Judges and Lawyers, t: +41 22 979 38 12, e: matt.pollard(a)icj.org
Jun 10, 2015 | News
The ICJ today welcomed the opinion by The United Nations Working Group on Arbitrary Detention (UNWGAD) condemning as arbitrary the detention of prominent human rights lawyer Thulani Maseko and calling on the Government of Swaziland to ensure his immediate release.
May 15, 2015 | News
Concluding a five-day mission today, an International Fact-Finding team of the ICJ observed that there are serious structural deficiencies in Swaziland’s justice system that need to be addressed systematically and in a structured way to ensure the country meet core rule of law principles.
The mission was conducted in collaboration with the Africa Judges and Jurists Forum, Judges for Judges (the Netherlands) and the Commonwealth Magistrates’ and Judges’ Association, with the aim to assess the state of independence of the judiciary and administration of justice in the country.
“Current developments are merely the symptoms of a systemic crisis,” said Mission leader retired Judge Chinhengo of Zimbabwe.
“There is a need for officials from all branches of government to adhere to the rule of law. The effect of denied justice and in Swaziland has made many victims. Its effect on the community has been devastating, as it has served to undermine respect for human rights and trust in the judiciary to act as a check on the other branches of the State,” he added.
The decision to convene the International Fact-Finding Mission coincided with highly troubling recent events, including the arrest of Judges Simelane and Annandale, Registrar Nhlabatsi and former Minister of Justice Shongwe, and the continuing stand-off between suspended Chief Justice Ramodibedi and governmental authorities.
The Mission was also deeply concerned by the emblematic cases of the unfair dismissal of Judge Thomas Masuku in 2011 as well as the unfair trial and subsequent arbitrary detention of journalist Bheki Makhubu and lawyer Thulani Maseko (photo, on the right) in 2014.
The mission noted these developments were the culmination of a longstanding and deep-rooted systemic challenge that has to be adressed.
During its visit, from 11 to 15 May, the Mission met with key stakeholders in the administration of justice in Swaziland, including the Prime Minister and the acting Attorney General, the acting Chief Justice, the suspended Chief Justice and other members of the judiciary, and representatives of the Law Society and leading civil society actors.
The International Fact-Finding Mission will release a report with its observations and recommendations to the Swaziland authorities and the international community, providing concrete advice on strengthening the rule of law in the Kingdom.
Contact:
Arnold Tsunga, Director, ICJ Africa Regional Programme, t: +27 11 024 8268 or +27 73 131 8411: e: arnold.tsunga(a)icj.org,
May 10, 2015 | News
From 11-15 May 2015, the mission will meet with a variety of stakeholders, including officials in the executive, the Ministry of Justice, the judiciary, members of Parliament, the legal profession, media, political analysts and civil society.
The International Fact Finding Mission in Swaziland (IFFM-SZ) is led by the ICJ, in collaboration with the Africa Judges and Jurists Forum (AJJF), Judges for Judges Netherlands (J4J) and the Commonwealth Magistrates’ and Judges’ Association (CMJA).
The mission aims, among other things, to:
- Assess the domestic legal framework (constitutional, legislative and administrative) and practice as it pertains to the independence of the judiciary and the legal profession in Swaziland;
- Identify obstacles posed – legal, structural, and practical – by the state of the independence of the judiciary to the capacity of the judiciary to fairly administer justice, including in relation to the protection of human rights;
- Gather information on and assess the relations between the critical stakeholders in the justice delivery chain;
- Gather information and assess the operations of the Chief Justice’s office in key delivery areas, such as the case management system (including the allocation and tracking of cases);
- Consider practice directives on administration of justice;
- Evaluate systems and practices for the appointment and disciplining of judicial officers and support staff;
- Assess whether an adequate programme of continuous legal education is in place for judicial officers; uphold the institutional and individual independence of the judiciary; and
- Assess the availability of access to justice.
The mission will rely on international human rights law and standards.
After the completion of the field meetings and interviews, ICJ will release a report detailing its findings and recommendations directed to key stakeholders for their consideration and implementation.
The ICJ is committed to supporting all stakeholders in strengthening the independence of the judiciary, the legal profession and observance of the rule of law in Swaziland.
The mission comes against the background of a number of recent developments of concern for the independence and accountability of the judiciary in the country.
Read also:
Swaziland: arrest of judges raises serious concerns
Leading legal voice intervene at UN level in the case of detained Swazi lawyer Thulani Maseko
Additional information:
The mission team is composed of Judge Moses Chinhengo (of Ruwa, Harare, Zimbabwe, retired High Court Judge Botswana and Zimbabwe; ICJ Commissioner; Interim Chair AJJF, Head of the IFFM-SZ) ; Judge Charles Mkandawire (of Lilongwe, Malawi, High Court Malawi; ICJ Commissioner; Regional President-CMJA and member of the IFFM-SZ) ; Judge Oagile Dingake (of Gaborone, Botswana, Professor of Public Law at University of Cape Town, Judge Residual Special Court of Sierra Leone, Judge High Court Botswana; member of the IFFM-SZ) ; and Judge Tamara Trotman (of The Hague, Netherlands, Judge of Court of Appeal in The Hague, Chair Judges for Judges, member of the IFFM-SZ).
The judges are supported by technical staff: Laurens Hueting (Legal Adviser, ICJ-Centre for Independence of Judges and Lawyers), Otto Saki (Senior Legal Adviser, ICJ-Africa Regional Programme) and Justice Mavedzenge (ICJ Consultant and University of Cape Town PhD Candidate and Rapporteur).
Contact:
Arnold Tsunga, Director, ICJ Africa Regional Programme Director, t: +27731318411 ; e: arnold.tsunga(a)icj.org
Picture by Darron Raw
Apr 23, 2015 | News
The ICJ is concerned at the recent arrest of Swaziland High Court Judges Jacobus Annandale and Mpendulo Simelane, the High Court Registrar Fikile Nhlabatsi and the Minister of Justice Sibusiso Shongwe.
The four detainees appeared today before High Court Justice Qinisile Mabuza (photo).
Justice Minister Sibusiso Shongwe was denied bail and remains detained, while the other two High Court Judges and the registrar were released on bail.
The judges, registrar and Minister of Justice are all facing various charges related to corruption and obstructing the course of justice.
The ICJ is also aware that police are presently seeking to arrest Chief Justice Michael Ramodibedi, and that they have surrounded his place of residence.
The ICJ has received information alleging that the police have cut off the electricity and water and have actively prevented people from bringing food supplies to him and his family.
The ICJ urges the authorities in Swaziland to immediately investigate the situation of the Chief Justice and, if the allegations are substantiated, to immediately restore supply of essential services to the Chief Justices family, denied in violation of rights guaranteed under the Swaziland’s Constitution and its international legal obligations.
“The arrest and attempted arrest of several judges, and a High Court Registrar as in this case, invariably raises questions of separation of powers and the independence of the judiciary,” said Wilder Tayler Secretary General of the ICJ.
“The ICJ therefore calls on the authorities in Swaziland to conduct themselves with rigorous adherence to rule of law principles, the separation of powers between the executive and the judiciary. They must also do so with strict respect for international human rights law,” he added.
The ICJ emphasizes that the Chief Justice and the other judges are entitled as everyone else in Swaziland to freedom from arbitrary detention and the right to a fair trial guaranteed under international law.
These protections include the right to be informed the reasons for their arrest and the nature of any criminal charges, the right to representation by a lawyer of their choice and the right to be considered for bail if appropriate.
If no crime is alleged, but serious professional misconduct is suspected, then arrest and detention is inappropriate.
Additional information:
The ICJ has had longstanding concerns with the state of the independence of the judiciary and legal profession and the fair administration of the justice in Swaziland.
The ICJ has recently intervened in a case involving the conviction of prominent lawyer Thulani Maseko in an unfair trial.
For an ICJ analysis of the independence of the judiciary and legal profession in Swaziland, go here.
Contact:
Arnold Tsunga, Regional Director, ICJ’s Africa Programme, t: +27 731318411, e: arnold.tsunga(a)icj.org
