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.
In response to a petition from the ICJ, the law firm Hogan Lovells US LLPS and the American Bar Association Center for Human Rights, the UNWGAD affirmed that the Swaziland government’s detention of Maseko is unlawful and that his rights to freedom of expression, liberty, and to a fair trial had been violated.
In addition to his immediate release, the UNWGAD said he should be paid adequate compensation, enforceable by law.
“This opinion by the WGAD is important not only because it advances Thulani Maseko’s quest for justice, but also because of the message it sends to the Swazi Government and judiciary that they are responsible for guaranteeing basic rule of law and human rights principles,” said Arnold Tsunga, Director of ICJ’s Africa Regional Programme.
“We call on the Government to execute the opinion of the UNWAD and immediately release Thulani Maseko and afford him reparation for his arbitrary detention,” he added.
Thulani Maseko, who is also a feature writer for The Nation magazine, was arrested in March 2014 shortly after he published an article criticizing the Government’s handling of the arrest and detention of another Swazi citizen.
He was sentenced to two years of imprisonment, after a trial the ICJ had condemned as unfair and not complying with international standards on the right to a fair trial.
In its opinion taken during its 72nd session between 20 and 29 April 2015, the UNWGAD determined that the detention of Maseko was arbitrary because it had been carried out in violation of his right to freedom of opinion and expression and as a result of numerous fair trial violations, including by judicial officials.
The UNWGAD concluded that Chief Justice Ramodibedi and High Court Judge Mpendulo Simelane, the judges ordering (and re-ordering) Maseko’s detention who were also involved in the conduct of the trial had not conducted themselves impartially.
Their conduct resulted in Maseko’s denial of a fair trial before an independent and impartial court as required under international law and standards.
The UNWGAD also found violations of a number of other fair trial rights, including the denial of Maseko’s right to legal assistance.
“It is gratifying that the UNWGAD reaffirmed the principle that a lawyer has the right to take part in public discussions of matters concerning the law and administration of justice, as Thulani Maseko did,” said Marc Gottridge, partner at Hogan Lovells. “Freedom of expression is such an important right that use of contempt of court proceedings to curtail it as was done in this case is not reasonably justifiable in a democratic society.”
Arnold Tsunga, Director, ICJ Africa Regional Programme, t +27 716 405 926 or +263 777 283 249, e arnold.tsunga(a)icj.org,
Matt Pollard, Senior Legal Adviser, ICJ, Centre for Independence of Judges and lawyers, t +41 22 979 38 12, e matt.pollard(a)icj.org
Marc Gottridge, Partner Hogan Lovells, t +1 212 918 3000, e marc.gottridge(a)hoganlovells.com
Ginna Anderson, Senior Counsel, Center for Human Rights, American Bar Association, t +1 202 442 3438, e ginna.anderson(a)americanbar.org
What the UNWGAD opinion said:
“The detention and trial of Mr. Maseko for his exercise of the right to express his opinion on a court case ‘runs contrary to Swaziland’s international human rights obligations in particular under article 19 of the International Covenant on Civil and Political Rights.”
“The non-observance of the international norms relating to the right to fair trial, established in Article 10 of the UDHR and Article 14 of the ICCPR in this case is of such gravity as to give the deprivation of liberty of Mr. Maseko an arbitrary character.”
“The deprivation of liberty of Mr. Maseko has been arbitrary, being in contravention of Articles 10 and 19 of the UDHR, and Articles 14 and 19 of the ICCPR.”
“The Government must take necessary steps to release Mr. Maseko and accord him an enforceable right to compensation.”
Thulani Maseko was arrested on 17th March 2014 following a warrant of arrest that was issued by the Chief Justice Michael Ramodibedi on his own motion. His arrest came after he had written an article titled “Where the Law Has No Place,” criticizing the courts for the way that a fellow Swazi citizen, Gwebu Bhantshana, had been arrested and detained and the wider implications of that case on the rule of law in Swaziland.
Save for three days in April 2014 when he was released following Judge Mumcy Dlamini’s judgment declaring his arrest and detention wrongful and illegal, Mr. Maseko has been in custody since his initial arrest. He was initially held at Sidwashini Correctional facility before he was taken to Big Bend Correctional facility, where he is currently detained.
Further background material can be found here:
Download the petition:
Swaziland-Maseko WGAD Petition-Advocacy-2015-Eng (full text in PDF)
The lawyers at Hogan Lovells US LLP who worked on this petition are Marc Gottridge, Dianne Milner, Allison Holt, and Hans H. Hertell. The ABA Center for Human Rights recruited Hogan Lovells to represent Maseko through its Justice Defenders Program, which coordinates pro bono legal support to human rights defenders.NewsPress releases