Content Regulation / Censorship
Association for Freedom of Thought and Expression (AFTE) v. Mohamed Hamid Salem
Closed Expands Expression
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Bheki Makhubu and Thulani Maseko are journalists who wrote articles in The Nation magazine criticizing the judiciary system for its partiality and lack of independence. Both were arrested, charged, and convicted for two counts of contempt of court. The Supreme Court of Swaziland reversed the conviction of the High Court after the prosecutor conceded the appeal and upon a finding that the High Court did not properly balance the freedom of expression with the proper authority of the courts, ordering their immediate release from prison.
Bheki Makhubu is a journalist and editor of a monthly magazine in Swaziland called The Nation. Thulani Maseko is a human rights lawyer in Swaziland. Both Makhubu and Maseko (the defendants) wrote articles in The Nation criticizing the judiciary system of Swaziland for its lack of impartiality and lack of independence. They condemned the actions of the Chief Justice of the High Court, Michael Ramodibedi, for ordering the arrest of a government vehicle inspector.
Makhubu and Maseko were subsequently arrested and charged with two counts of contempt of court. Makhubu and Maseko argued that the arrest warrant was unconstitutional, unlawful, and irregular. They asserted that only a magistrate was authorized to issue an arrest warrant and not Justice Ramodibedi, being a justice of the High Court. Accordingly, Makhubu and Maseko filed an application contending that their arrest was unconstitutional and unlawful. The case was heard in the High Court before Justice Dlamini, who dismissed the arrest warrant and released Makhubu and Maseko.
Justice Ramodibedi, the Office of the Director of Public Prosecutions, and the Attorney’s General Office, appealed Justice Dlamini’s decision. Justice Simelane reordered the arrest of Makhubu and Maseko and continued the criminal trial.
Both Makhubu and Maseko contended that the state did not prove its case beyond reasonable doubt pertaining to the offense of contempt of court, as they lacked sufficient evidence to satisfy the elements of the offense. Makhubu and Maseko also submitted that both counts were an unjustifiable limit to the right to freedom of expression. Justice Simelane convicted Makhubu and Maseko for contempt of court. He then sentenced both defendants to two years of prison without benefit of bail, and fined The Nation and the publishers of the magazine. Makhubu and Maseko appealed the decision to the Supreme Court of Swaziland.
Judge B.J. Odoki delivered the opinion of the Supreme Court of Swaziland. The main issue before the court was whether the convictions of Makhubu and Maskeo for contempt of court were a justifiable limitation to freedom of expression.
Makhubu and Maseko argued before the Supreme Court that the state did not prove its case of contempt beyond a reasonable doubt. Further, they argued that the High Court did not consider their right to freedom of expression as recognized in Section 24 of the Constitution of Swaziland. They contended that had the court considered the right to freedom of expression, they would have had to interpret it in a broad manner. On the other hand, the court should have given a narrow interpretation to the offense of contempt of court. Their conviction of contempt of court, according to Makhubu and Maseko, constituted an unjustifiable limit to their right to freedom of expression.
The state prosecution, conceded the appeal. One of the many reasons cited by the state prosecution were the “inadequacy of the evidence to support the charges.” [para. 12] Judge Odoki, in his judgment, commended the state prosecution for conceding the appeal. Nevertheless, he declared that “what happened in this case was a travesty of justice.” [para. 14] He also established that the High Court did not properly balance the right to freedom of expression with the authority of the courts. [para. 14] Judge Odoki concluded that “[t]he importance of freedom of expression in promoting democracy and good governance cannot be over emphasized.” [para. 14] Accordingly, the Supreme Court overruled the convictions of Makhubu and Maseko and ordered their immediate release.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Supreme Court expanded expression, as it acquitted Bheki Makhubu and Thulani Maseko of their conviction for contempt of court. The charges were in response to articles criticizing the judiciary system. The Supreme Court and the Director of Public Prosecutions acknowledged that Makhubu and Maseko were wrongly convicted. The Supreme Court asserted that the case was a “travesty of justice” and highlighted the importance of freedom of expression in a democracy. [para. 12] International organizations hailed the decision by the Supreme Court as an important step forward for the right to freedom of expression in Swaziland.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court of Swaziland is the final court of appeals and all decisions are binding precedent on lower courts in Swaziland.
Let us know if you notice errors or if the case analysis needs revision.