MISA-Swaziland | Alert
March 28 2014
“Accused persons, stand up accused persons. You will further remain in custody until April 9th.”
These were the parting words of Swaziland high court judge Mpendulo Simelane as he ordered journalist Bheki Makhubu and prominent human rights lawyer Thulani Maseko back into detention for another seven days.
Before the hearing this morning the lawyers for Makhubu and Maseko went to the judge’s chambers to indicate they would apply for judge Simelane to “recuse himself” from the hearing — a polite legal term meaning the judge should consider removing himself from the hearing because of a possible conflict of interest. The possible conflict might arise because Simelane is a potential complainant and witness in any trial that may proceed, owing to the fact that he is a subject of one of the opinion pieces that has landed Makhbubu and Maekso in detention.
In open court, after the defence indicated it would apply for recusal, the Crown — or director of public prosecutions (DPP) — said it will oppose the recusal application. Judge Simelane then set April 9th as the date for a ‘recusal hearing’.
It was thought that Makhubu, editor of monthly magazine The Nation, might apply for bail tomorrow. However after the legal developments this morning, any possible bail hearing for Makhubu will seemingly be postponed until the matter of Simelane’s potential conflict — the recusal matter — has been heard.
Adding another layer of legal intrigue, it has been reported that Maseko will bring a case against chief justice Michael Ramodibedi this coming Thursday. Local media reported over the weekend that Maseko will argue that the chief justice did not have the legal power to issue the warrant of arrest, alleging further that the chief justice’s actions were unconstitutional and irregular.
Makhubu and Maseko have been behind bars since March 18, when the chief justice sent them to prison after a closed hearing in which the accused didn’t have an opportunity to defend themselves or apply for bail. Makhubu and Maseko have been charged with contempt of court for writing articles questioning the judiciary.
Ramodibedi, an unpopular figure in Swaziland’s civil society, is facing possible impeachment in his home country of Lesotho, where he is currently the suspended president of the court of appeals.
The local media in Swaziland has also raised questions regarding the competence of judge Simelane, the 39-year-old former registrar of the high court who is currently hearing the Makhubu and Maseko proceedings.
Both Ramodibedi and Simelane feature in the articles that got Makhubu and Maseko into trouble on criminal contempt charges.
Many local and international legal observers are questioning how judicial independence can be maintained when a judge, who is presiding over pre-trial proceedings, is also a potential complainant and witness in any criminal case that might proceed.
Outside the court after the hearing many political activists were seen singing and dancing; police softly prodded them towards the exit of the high court’s car park, where the activists continued to sing protest songs.