/ 25 May 2015

Jailed Swazi activists in legal limbo

Mario Masuku
Mario Masuku

Around the anniversary of their arrest on May 1 this year, Swazi political prisoners Mario Masuku and Maxwell Dlamini were moved to the Matsapha Correctional Facility in Swaziland, where mainly convicted prisoners are held, although they are awaiting trial and have not been convicted of a crime.

They were denied access to reading materials and kept in solitary confinement overnight, which meant they had no access to ablution facilities or water. Their lawyers say their food was highly restricted and that the two were not allowed to exercise.

About a week after the move, their lawyers filed papers challenging their detention conditions. Swazi prison officials quickly moved to improve Dlamini and Masuku’s prison conditions.

The reasons for the move are unclear, but May 1 is not an arbitrary date; it is the date when, in 2014, the two were arrested and charged with terrorism, sedition and subversion after addressing a May Day rally in Manzini.

Masuku is the president of the People’s United Democratic Movement (Pudemo) and Dlamini is the secretary general of the Swaziland Youth Congress.

Their “crime” was chanting “Viva Pudemo, Viva!” and calling for democratic reforms.

They had also questioned the country’s system of absolute monarchy and the judiciary’s independence.

Said Masuku in court papers: “The speeches and comments were in response to what we perceive to be a grave political situation in Swaziland in which citizens’ rights are repeatedly infringed.

“Our speeches were intended, without using force or violence, to protest against actions of officials that we believe were inconsistent with the Constitution of Swaziland and not in the interest of a free and democratic Swazi society.”

Pudemo was declared a terrorist organisation in 2008, although it has repeatedly said it only wants democratic reforms in Swaziland, and that it does not advocate overthrowing the state. Under Swazi law political parties are not allowed to participate in elections.

Pudemo was formed in 1983 and is led by Masuku. It has repeatedly complained of harassment by the Swazi state. Masuku’s home was raided and documents stolen in 2010. It claims to have about 15 000 members.

According to Caroline James, a lawyer at the Southern Africa Litigation Centre (SALC), which is currently representing the two activisits, Masuku’s family has suffered as a result of his political activity. His son, Mzwandile, a lawyer, was refused entry to university when he first applied. He later completed a law degree but was later refused admittance to the roll of attorney, said James.

In a recent interview with Amnesty International, Mzwandile Masuku recounted his home being raided by the Swaziland police when he was a child, and the 24-hour-a-day surveillance that his family were subjected to. He said that his visits to his father in prison are not private and their conversation is recorded by three correctional services officers.

Dlamini is 23 and is unmarried and has no children. He is trying to complete a university degree and his studies have been interrupted by the arrest, James says.

Now, Masuku, Dlamini and others charged with similar crimes have launched a joint application to challenge the constitutionality of Swaziland’s terrorism laws.

In the meantime, they are in limbo, unable to get bail.

Judge Mphundelo Simelane refused the pair bail shortly after their arrest because he believed they were likely to commit offences if released. Simelane was later arrested for defeating the ends of justice in relation to another matter.

“It’s completely unfair to say you’ve got a propensity to commit offences when you’ve never been convicted,” said James.

‘Not following precedent’

Speaking to the Mail & Guardian in Johannesburg, James said that in the past, activists who were arrested under Swaziland’s terrorist laws would be granted bail but it was rare that their trials would go ahead, leaving them with the charges hanging over their heads for years.

Denying Dlamini and Masuku bail “doesn’t follow precedent”, said James.

The pair appealed the judge’s decision to refuse them bail in October last year. Now, their lawyers argued that new circumstances had arisen: Masuku’s health was rapidly deteriorating.

Masuku is 65 and is diabetic. James had hoped that his deteriorating health would be a mitigating factor in granting him bail, but the judge was not convinced.

He suffers from serious leg pains as a result of his condition.

James said that while Dlamini appears in court in leg irons, Masuku does not, presumably because his legs are too weak.

Masuku has been treated in hospital while being kept in jail, and his doctor says he needs physiotherapy.

Masuku has been arrested several times over the past two decades for offences stemming from his political work.

Dlamini was arrested for possession of explosives but he was acquitted on those charges. He was also arrested on sedition charges in 2012 but the charges have yet to go to trial.

In appealing the judge’s refusal to grant them bail, James said, it was argued that it was unlikely that the pair’s criminal trial would go ahead until the constitutional challenge to the treason laws was over. This could mean that Dlamini and Masuku will be held in jail indefinitely.

That appeal was denied, and James and her team appealed again.

That appeal was due to be heard in May this year but it did not go ahead because at the time, the Supreme Court — Swaziland’s highest court — was suspended.

This was because the Chief Justice, Michael Ramodibedi, had fled the country after an arrest warrant was issued.

Shutting down opposing voices

“Our lawyer in Swaziland is cautious of bringing another bail application on the basis of the delay because if that is refused, then we are back to square one,” said James.

In the midst of this legal quagmire, a shift in the political atmosphere appears to be taking place, which is to detain people “and act on it”.

“And it relates to the general concept in Swaziland which is to really shut down any opposing voices. And that has meant that it is really difficult to spread political views, and this reinforces the monarchy’s position. People aren’t able to see the alternatives,” she said.

In the constitutional challenge, Dlamini, Masuku and the other co-applicants argue that the laws criminalise statements calling for non-violent political change. Swazi human rights lawyer, Thulani Maseko, and journalist, Bheki Makhubu, who have been jailed in Swaziland, are also co-applicants.

Last Thursday, the European Parliament passed a resolution calling for the release of Swazi political prisoners.

James said the African Union Commission and the United Nations rapporteur on freedom of expression are both aware of Dlamini and Masuku’s case. Cosatu has also been vocal on their detention.

But drumming up support for their cause is not easy, partly because the activist community in Swaziland is small, thanks to the political climate.

Meanwhile, James said Dlamini and Masuku are doing well in prison under the circumstances.

“Every time I meet them I’m just humbled by them. They really are incredibly strong personalities. They do go through ups and downs. When their second application for bail was refused, that was their lowest point.”

“But they are really committed to what they believe in and they get a lot of strength knowing that there are a lot of Swazis who support them, and that they feel that they’re fighting a democratic struggle that will lead to some sort of democratic change in the country.”

The last time the ANC condemned the detention of political prisoners in Swaziland was in 2013. At the time, the Swazi government issued a rebuke, saying it did not know of any political prisoners being held in the country and saying that the ANC should allow the law to take its course.

Amnesty International, in its 2015 annual report, noted concerns about Masuku’s deteriorating health, as well as the “deterioration” of “the rule of law, access to effective remedies and protection of human rights in Swaziland”.

  • The SALC is running a twitter campaign throughout May, under the hashtag #FreeSwaziland. The campaign aims to “draw attention to Dlamini and Masuku’s cases and the rule of law crisis in Swaziland that has caused cases such as Masuku and Dlamini’s”, according to the centre.