Another week in jail for journalist Bheki Makhubu and human rights lawyer Thulani Maseko. High Court judge Mpendulo Simelane refuses to remove himself from the case. Defence lawyers argued that Simelane cannot be objective because he is a subject of criticism in the opinion articles that have landed Makhubu and Maseko in detention on criminal contempt charges. During a recusal l hearing yesterday at Swaziland’s high court, lawyers for Makhubu and Maseko argued that the ordinary person on the street perceives Simelane to be biased against the accused persons. The lawyers said there is a reasonable perception (or apprehension) of fear that Simelane might not approach the case with an open mind. The DPP, or Crown lawyers saw no reason for Simelane to recuse himself. DPP lawyers argued at length saying judge Simelane is fit to preside over the case. Simelane, in his ruling, saw no reason to recuse himself from the case and set next Tueaday 22 April as the beginning of the contempt trial.
Family members of Makhubu and Maseko and about 100 supporters and observers were barred from the court yesterday. Tension was high at the court with police surrounding the building and adjoining areas. Many security officials with guns were seen at discreet locations in the court’s carpark.
The hearing was in a small court room. At one stage the wife and brother of Makhubu were refused entry, though they eventually made it into the court. Many attempts were made by lawyers to move the hearing to a bigger court room but judge Simelane said only the registrar can allocate a different court.
Background Simelane and Swazi chief justice Michael Ramodibedi were both criticised in opinion pieces written by Makhubu and Maseko earlier in the year. Ramodibedi issued a warrant of arrest after the articles were published and charged the respected editor and prominent human rights lawyer with criminal contempt of court. Makhubu and Maseko were subsequently freed from prison after judge Mumcy Dlamini found the initial arrest warrants were unlawful. Makhubu and Maseko were re-arrested a few days later after judge Simelane ordered new arrest warrants. They were taken back into custody and they remain at Sidwashini prison in the capital Mbabane. Many commentators and lawyers have suggested this is an attempt to bring back arbitrary detention.
In the trial that will begin next week Makhubu and Maseko have listed judges Simelane and Ramodibedi as witnesses. It now appears that Simelane will be a judge and a witness in the same case.
In a separate matter, the Swaziland Law Society last week lodged an application challenging the appointment of Simelane as a high court judge. The law society alleges he does not have the required experience, as set out in the Constitution, to qualify as a high court judge. The judicial services commission, on the other hand, has praised Simelane as a rising star.
Alluding to the application challenging Simelane’s appointment, lawyers for Makhubu and Maseko yesterday argued that Simelane has shown bias towards the Crown’s lawyers. The defense lawyers also pointed out that it is clear that DPP lawyers want Simelane to preside over the contempt trial, as the DPP has been vehemently opposing attempts to recuse (or remove) Simelane as judge. Simelane dismissed any perception of bias.
Ramodibedi is also at the centre of controversy and is soon to face an impeachment hearing in his home country Lesotho, where he is suspended from a senior judicial position. He is facing several allegations including misconduct. He has denied all charges.
Source : MISA-Swaziland