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Constitution under the spotlight in nation case

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MBABANE – The constitution came under the spotlight as the Editor of The Nation magazine Bheki Makhubu defended himself from scandalising the Judiciary in articles he published in November 2009 and February 2010.

Makhubu and the Swaziland Independent Publishers (PTY) Limited were taken to court by the Attorney General Majahe-nkhaba Dlamini. Dlamini sought an order charging Makhubu and the company publishing The Nation magazine with two charges of contempt of court for scanda-lising the court and punishment.

The application came as a result of two articles Makhubu published wherein he praised Judge Thomas Masuku for coming up with a dissenting Judgment from two Supreme Court judges in the Macetjeni and Kamkhweli evictions.

In the same article titled ‘Will the Judiciary come to the party?’ Makhubu also called upon newly appointed judges to uphold the Constitution.

Makhubu had also spoken about the Chief Justice Michael Ramodibedi’s self given name ‘Makhulu Baas.’ The AG felt the articles were scandalising the courts, hence Makhubu should be charged. Makhubu via his advocate, Gilbert Mar-cus, applied for acquittal of the two charges laid against him.

The matter was heard by High Court Judge Bheki Maphalala.

Makhubu said he never committed contempt of court. He said the theme of the November 2009 article was the role of the Judiciary in enforcing and protecting the Constitution. He said it was catalysed by the appointment of new judges of the High and Industrial Courts.

Makhubu criticised the Judiciary for having ‘stayed away’ from the constitutional process the country was going through. He also said members of the public would be looking up to the new judges to help them understand what it meant to live in a constitutional state.

Advocate Marcus, on Makhubu’s behalf, said the article read in its entirety supported the principles of Constitutionalism and the rule of law. He also said it underscored the importance of the Judiciary in upholding the Constitution.

He further submitted that Makhubu’s article stressed the potential of the Constitution and the Judiciary to have a direct impact on the lives of the people.

In the editorial article where Makhubu wrote about the Chief Justice Ramodibedi referring to himself as ‘Makhulu Baas’, Marcus said he saw the reference as unbecoming because it came from the Apartheid South Africa era. He said Makhubu, in the article, found that Ramodibedi had lowered his stature and lacked decorum.

"The article must thus be assessed on the basis that the acting Chief Justice used the language in question. It is undoubtedly critical of the acting Chief Justice for having done so, but such criticism is underpinned by an acknowledgement from the author of the esteem and importance of the judicial office.

"Put differently, such behaviour from a person other than a judge would not occasion comment. It is precisely because the author holds judges in high regard and considers it important for the dignity of judges to be upheld that he levels the criticism in question," Marcus said.

Advocate Marcus said the criticism of Ramodibedi fell within the bounds of legitimate criticism and could not amount to contempt.

The matter continues this morning.

...AG has no power to institute case - Advocate

MBABANE – The Attorney General (AG) Majahenkhaba Dlamini has been accused of usurping his wife Mumcy’s prosecuting powers.

Mumcy is the Director of Public Prosecutions. Advocate Gilbert Marcus has said it was unconstitutional for Dlamini to institute criminal proceedings against The Nation magazine, because he does not have prosecuting powers.

The Nation magazine and its Editor Bheki Makhubu have been charged with contempt of court charges for publishing articles critical of Judiciary and Chief Justice Michael Ramodibedi.

He said the AG and the DPP are constitutional institutions to whom separate and distinct powers are conferred. He said that in terms of the Constitution (Section 162), the DPP is vested with the power to institute and undertake criminal proceedings against any person before any court.

"By contrast the powers of the Attorney General in terms of Section 77 of the Constitution do not include the right to prosecute whether in his own right or acting under delegated authority," he said.

Marcus noted that in the separate applications, Dlamini said he had been authorised to represent the DPP. He submitted that Dlamini’s representation was not competent in terms of the Constitution. He also argued there could be no lawful delegation by the DPP to Dlamini.

"While the Constitution in Section 162 (5) envisages the power of the DPP to delegate, this is only in relation to subordinate officers. The Attorney General is clearly not a subordinate officer," he said.

He said there was no proof by Dlamini that he had been permitted to act in the proceedings against The Nation magazine. He further argued that there was no justification for the DPP not to perform her constitutionally assigned duties.

...Makhubu cries freedom of speeech

 

MBABANE – The Nation magazine Editor Bheki Makhubu says his articles were fair comment and of public interest.

Makhubu has argued that the case can never be separated from the protection of freedom of expression as enshrined in the Constitution. Advocate Gilbert Marcus made submissions on Makhubu’s behalf; that fundamental rights are enforced by the country’s Constitution.

Marcus argued that any law that was inconsistent with the right to freedom of expression was void to the extent of its inconsistency. "Courts throughout the world have afforded protection to freedom of expression, especially in matters of political debate. As a result, criminal sanctions that limit political speech have either been struck down in their entirety, or have been restrictively interpreted," Marcus said.

He further argued that freedom of expression was essential to an open and democratic society based on freedom and equality.

Marcus said the lack of freedom of expression severely compromises openness and endangered freedom. "The role of freedom of expression in promoting and protecting democracy has long been regarded as axiomatic in political and philosophical writings as well as in the international and comparative jurisprudence of the subject," he said.

He said had Mumcy done so, it the would have to have been in regard to public interest, interest of the administration of justice and the need to prevent abuse of the legal process. He also argued that the Attorney General would also have to be independent and not be subject to the direction of any other authority.

He said the Attorney General, based on the foregoing, had no mandate to prosecute.

Marcus also said Makhubu’s rights had been violated, in that he was deprived of his right to be presumed innocent until proven guilty.

The Attorney General had been granted an order calling upon Makhubu and The Nation magazine to show cause why they should not be charged on two counts of contempt.


Comments

This is a landmark case and I hope that justice will prevail and, we, the people of the kingdom of eSwatini will be allowed to enjoy our constitutional rights, including freedom of expression. It's common knowledge that the judiciary has been in crisis for a while now and the AG and Makhulu Baas have not helped the situation. To comment about such is only fair. Since the Times of Swaziland and the Swazi Observer can never write any meaningful comment on sensitive issues, Makhubu is the only true patriotic son of the soil in the media industry. It is for that reason that I and many open minded intellectiuals hold him in very high esteem.
Feb 7, 2012, 7:51 AM, sibusiso (sibusisohlatjwako@yahoo.com)

The mere fact that Majahenkhaba and Mumcy share a bed and discuss our national issues in their bedroom instead of the office does not confer the former with authority to usurp his wife's powers and tear our Constitution in the process. These are the fruits of our royal nepotism manifesting in a very unfortunate way. For years I have always wondered why our Constitution does not guarantee freedom of the press, and also why the right of the individual to have access to information was systematically excluded from the constitution notwithstanding the fact that Swaziland is a party to both the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples Rights wherein these freedoms are guaranteed and protected. But now I can see... the intention was to keep the media muzzled. This case is a non-starter. In defamation proceedings the press is guaranteed freedom through so many defences, yet civil proceedings have a lower standard of proof than criminal proceedings. Why then should that same standard not apply in the present case? We wait to see what the outcome shall be, and let me stop before I become the next topic of discussion for Majay and Mumcy tonight.
Feb 7, 2012, 4:26 PM, Thabiso Mavuso (tiboz@ymail.co)

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