As Swaziland prefers charges on an editor and a human rights lawyer, it's the institutions of power that are on trial here, writes Musa Hlophe.
A fortnight ago we woke up to headlines that said Thulani R Maseko, a prominent human rights lawyer in Swaziland, had been arrested and that the Nation's managing editor, Bheki Makhubu, was wanted by the police. That was soon to be followed with their appearance in the high court on allegations of contempt of court.
At this point, no one expected what was to follow. First, they were brought before a closed court – which meant that we do not know exactly what happened, except that they had been remanded to prison for another week. Much of this raised questions, but we reminded ourselves that this was Swaziland wherein the rule of law and the respect, protection and promotion of human rights count for nothing. Therefore, accept this as it is: justice – Swazi style.
But we were soon outraged after seeing pictures of Makhubu going to court in leg irons. What an insult to those Swazis who cherish the ideal of respect for human dignity. Section 18 of our Constitution has this to say about protection from inhuman or degrading treatment: "(1) The dignity of every person is inviolable and; (2) a person shall not be subjected to torture or to inhuman or degrading treatment or punishment."
This provision of our Constitution was totally violated when Makhubu was brought to court in leg irons. This is the most humiliating and degrading treatment to which we as a country could subject a decent citizen. The embarrassment did not reflect just on the individual we thought we were humiliating, for whatever reason, but on how barbaric we can be as a nation. While it must be humiliating to have two prominent law-abiding citizens being incarcerated as the two have been; to put them in leg irons as though they were not only dangerous, but violent common criminals is totally inexcusable and insulting in the extreme.
Unfortunately for the government, which is worried about its public image and the image of this country in general, this particular case and the manner in which it is being handled (as if to instill fear in the lives of the citizens, as Senator Chief Kusa Dlamini observed in Parliament) has renewed the calls for Swaziland to uphold the rule of law and respect and protect human rights. It is no longer just Maseko and Makhubu on trial, but the country and its institutions of power.
It does not need any mischievous person or persons to paint a bad picture about it, the government and its structures are good at doing that job. When power is abused by any structure of government, the action reflects, not only on the government of the day, but on all our institutions of governance. What this reflects is an extreme form of assault not on peoples' rights, but a serious assault on justice and the rule of law in Swaziland. It is that bad.
When Swaziland government spokesperson Percy Simelane says King Mswati III never ordered the arrest of Bhantshana Gwebu, he misses the point that when the state prefers charges against a citizen or citizens, it does so on behalf of the crown or the king. Therefore, when the charge is said to be The King vs Bhantshana Gwebu, it does not mean that the king has personally ordered the trial of this citizen, but a certain arm of government has ordered the action. But, above all, Simelane must know when to defend government, even when government actions are indefensible. Sometimes it is advisable just to keep quiet and let those departments or agencies of state which have blundered, sweep up their mess. It is called wisdom.
How has this case boomeranged? In this way: it has come about at a time when the government is facing difficult deadlines on both the issues of the International Labour Organisation (ILO) and the imminent cut-off from being entitled to low or no import taxes on our goods in the United States through Agoa/GSP. Both these demand the promotion and protection of human rights generally, but especially worker rights. The Americans have already expressed their displeasure at how this case came about and how it is being handled. This has a direct impact on whether we retain our privilege of Agoa/GSP or lose it. We cannot, and must not hope to deceive the international community by doing some patchwork on worker rights, in isolation of the broader rights of citizens to freely express themselves, peacefully assemble and associate, and hope that the international community will believe us. To think so is utter foolishness.
The prisons department, by its action of having these two decent citizens in leg irons and their denial of access to them by their regional colleagues, has damaged the image of this country irreparably. At the time of writing this article, I was aware of several high-level meetings of jurists in Pretoria, South Africa, to discuss this issue. I was also informed by our colleagues in Brussels that trade unions in Europe were planning their responses to this insult to human dignity. It has to be kept in mind that the European members of ITUC are extremely influential on their governments and EU Aid and Trade Preferences are also subject to review if Swaziland openly and seriously abuses human rights. If they were to take an anti-Swaziland stance, we may face embarrassments in future; if not the same pressure we are faced with, because of how the unions in the US have done with regards to the Agoa/GSP. We must just wait and see.
But why are we finding ourselves in this mess? Who is responsible for all this? Others will say that it has to do with challenges in the exercise of power by some agents of state. Others will be tempted to blame it on some foreigner or such kind. I am neither racist nor tribalist. I am, if anything, a pan-Africanist. Therefore I shall never criticise someone on the basis of his or her country of origin.
In the present case, the problem we see is simply a symptom of a much larger political problem. As a country, we have allowed ourselves to act above the law, with no consequences. The initiator of this scandalous case will not be questioned as to his or her wisdom for doing this thing the way it has been done: bringing shame to the country and its respected institutions. It is because of such bad, if not poor political culture, which has created a culture of impunity and unaccountability by agents of state.
Instead of those in power focusing on those whose actions have brought this shame and embarrassment to the country, sadly, they will be looking for some scapegoats to hang.
What we have seen these past two weeks should embarrass every decent person who knows both Makhubu and Maseko; two upstanding citizens of this country who, by their calling, have demonstrated their love for king and country; the government stooped too low in its handling of this case. While I am the first one to say the courts deserve respect from the population, I am also the first one to say that the courts must earn the trust and respect of the citizenry. Respect and trust are never imposed but earned. The honourable minister of justice needs to know this.
However, the most astonishing thing in all this is the silence from the Human Rights Commission. Where are you throughout this episode? You mean to tell the nation that this has not come to your attention and caused you worry? Which rights will you ever protect? Do not bother trying to answer: we understand your limitations and they are deliberate.
Our sympathy goes to the families and friends of both Makhubu and Maseko. Your loved ones may be incarcerated, but may you find comfort in the knowledge that they are not the ones on trial, but that it is Swaziland's justice and political system in the dock.
Musa Hlophe is a leading human rights activist in Swaziland. He is co-ordinator of the Swaziland Coalition of Concerned Civic Organisations and a member of the Southern Africa Human Rights Defenders Network.