/ 31 July 2014

Swazi judgment deals a heavy blow to freedom of expression

Speaking out: Campaigners protest against the jailing of two journalists outside the Swaziland embassy in Pretoria.
Speaking out: Campaigners protest against the jailing of two journalists outside the Swaziland embassy in Pretoria.

On July 17 Judge Mpendulo Simelane found human rights lawyer Thulani Maseko and magazine editor Bheki Makhubu guilty of contempt of court for writing articles in Makhubu’s magazine, the Nation, earlier this year. They were critical of the way in which a government vehicle inspector had been arrested and detained without trial.

Simelane sentenced Maseko and Makhubu to a two-year jail term, without the option of a fine, and ordered the magazine and its publisher to pay a 100 000 Swaziland lilangeni (R100 000) fine.

Contempt of court is designed to protect the administration, functioning and integrity of the judiciary. South African criminal law author Jonathan Burchell defines it as “unlawfully and intentionally violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it”.

Contempt of court is often understood as disrespecting a judicial officer in court, or as refusing to adhere to a court order. But it also encompasses conduct that may lower the public’s opinion of the judiciary or that affects an ongoing legal proceeding. The purpose of holding those who report on a pending case in contempt is that such statements risk prejudicing the judging of the case and may endanger the fairness of the trial.

But by criminalising the making of certain statements, the offence is an infringement of the right to freedom of expression, and so courts have attempted to strike a balance between respecting that expression and still ensuring that the integrity of legal proceedings is not compromised.

But Simelane did not try to find a balance – he came down firmly on the side of the judiciary and disregarded the need to give effect to media freedom. He rejected the defence’s reference to a seminal United States case relating to contempt of court, on the grounds that US laws differ fundamentally from Swazi contempt laws.

Although this may be fair, because the American right to freedom of expression is absolute and the Swazi right includes justifiable limitations, the judge’s failure to acknowledge the many other jurisdictions with similar rights is not.

In 2007, the South African appeal court ruled that, because of the importance of freedom of expression, the publication of a report relating to a pending case would only be unlawful and in contempt if there was a real risk of prejudice, and if that prejudice was substantial. The court referred to the United Kingdom, Canada and Australia, which all require a substantial risk of serious interference in the fairness of a trial for a publication to constitute contempt.

The Swazi judge also did not assess the defence position that, because the articles criticised only the arrest and detention of the inspector, the comments could not constitute contempt because they focused solely on events that had already happened. They did not have any bearing on future proceedings and could not have prejudiced the case.

By ignoring this, Simelane has interpreted contempt as not requiring a relationship between statements made about an ongoing case and the prejudice they could or would cause. He has, in effect, defined contempt as covering all comment made about any ongoing case in Swaziland. The effect of this is to prohibit all reporting on trials, making all court reporters criminals. This is out of synch with international practice and will have serious consequences for those hoping to hold the already impervious Swazi judiciary to account.

In his judgment, Simelane said that the courts have to use “the ammunition of contempt of court in self-protection from journalists” and defended the two-year jail term on the basis that it would serve as a deterrent to other journalists.

What is most disconcerting is Simelane’s failure to understand who the holders of the right to freedom of expression really are. His disdain and scorn for Maseko and Makhubu leads to his inability to appreciate that it is the public, and not the journalists themselves, who most benefit from the protection of freedom of expression.

By removing the media’s ability to report on any pending legal proceeding, and by imposing the harshest possible sentence on Maseko and Makhubu as a deterrent to other critics, Simelane may have ensured that the public never becomes aware of any nefarious conduct in the judiciary.

Sadly, this may have been his intention from the beginning.

Caroline James is a project lawyer for the media defence programme at the Southern Africa Litigation Centre