Justice delayed, justice denied
On January 20, 2006, the office of the Director of Public Prosecution (DPP) succeeded in delaying the bail hearing for the sixteen political activists facing high treason charges in Swaziland. The hearing was rescheduled for March 7, 2006 after the DPP argued that it was unable to proceed because the South African-based prosecution team was not ready.
This is the first stage of the DPP's plan to use its South African prosecutors to do the regime's dirty work. In this instance, the DPP is hiding behind the hired prosecutors to deny justice to the sixteen detainees. We regard the DPP's argument as a time-buying exercise, which has three objectives.
Firstly , the DPP has not thus far come up with a credible explanation to support its opposition to the bail application. We believe that the DPP has no credible explanation and is playing for time in the hope that it, or the South African lawyers it has employed, will come up with something which will not be laughed out in court. The rescheduling of the bail hearing allows the DPP time to cast about for some credible argument. In the interim, the state will continue to use the media to create a powerful public image of the detainees as serious threats with an established local and external network. As shown in numerous official statements, the intention is to convince the public that the danger is real and there are still "bombers" out there who are intent on continuing the "bombing".
The recent petrol bombing of two public schools (see The Times of Swaziland, January 24, 2006) presents an opportunity for the state to strengthen this image and justify more arrests and the continued detention of the sixteen pro-democracy activists. In every society schools are important symbols of nation building and they are places used by children. In Swaziland, ordinary families largely fund public schools and it is they who will be required to pay for the damage. Many of these families are poverty stricken and will be hard hit by these unexpected costs. Occurring just a few days before the beginning of the new term, the recent incidents are highly likely to generate anger and panic in the community. The nightmare spectre of further petrol bombings will haunt many parents. The state is hoping to use the recent incidents to generate maximum public panic by portraying them as an attack against progress, the community and most importantly as an attack and threat against the vulnerable - children.
The school attacks are likely to achieve the state's objective to generate mass public panic. Swazis are now being told that there are "bombers" who are threatening the country and who have even targeted their children. On the other hand, their government is committing torture and arresting more and more people without having to justify these arrests under law. It is well-known that the aim of torture and mass arrest is primarily to subdue and oppress the mass population. By subjecting a few pro-democracy activists to inhumane conditions, the majority is frightened into submission. As the regime plays out its show, the population will become more and more frightened and traumatised - threatened both by the spectre of the "bombers" on one side and state terrorism on the other.
Any population experiencing this kind of fear is vulnerable to manipulation and increased control by the ruling regime. People will often agree to government actions that they would have previously resisted - they will pay almost any price if they think that it will buy them safety from the threats. We expect that the regime will exploit this vulnerability to the full.
Secondly , the new date for the bail application case is of particular interest to political observers. The date for the rescheduled hearing falls after the official opening of parliament in February 10, 2006. At this ceremony, the King delivers his annual state of the nation address. Undoubtedly, the "bombings" and the detention of the sixteen people will be on the King's agenda as he lays the ground for declaring a state of emergency. It is expected that the King will validate dominant official discourses that the "bombings" and the detainees present a real threat to the public.
It would have not been in the state's interest to allow the case to proceed because the government is anxious to maintain the current conditions until the official opening of parliament. If it had allowed the bail application to be heard as scheduled, the state would have taken enormous risks tantamount to playing Russian roulette. The prosecution's case is extremely weak and a decision in favour of the bail applicants would have seriously damaged the credibility of state propaganda and this in turn would have threatened the rule of law. Since the first arrests, the state has been relentless in its attempt to create and validate an image of the detainees as a danger to the public. If the detainees were released on bail, the state's credibility, particularly the argument that the public is fearful of the detainees, would have suffered a severe blow.
The 2-year judicial crisis, which ran from 2002 to 2004, demonstrated that the state has no respect for the rule of law and does not accept the jurisdiction of the courts to rule on the regime's actions. Thus, it is probable that the regime would have disobeyed the decision of the High Court and refused to release the detainees. This would have created another rule of law crisis.
The regime learned a bitter lesson during the 2002-4 crisis - that overt interference in the administration of justice is a bad strategy. During this crisis, the government wobbled under sustained local and international criticism and demand to restore the rule of law. In 2004, it was ultimately rescued by the Commonwealth Secretariat, which created the impression that it had helped solve the crisis. This is far from the truth as the government never agreed to respect the 2002 rulings of the Court of Appeal. For example, the Commissioner of Police and the Ubombo Regional Police Commander were never committed to prison for contempt of court as per the ruling of the Court of Appeal. In relation to the 200 families and their two chiefs who were evicted from their homes by royal order, the Court of Appeal ruled that they be allowed to return without conditions. Some of the families who returned after the Commonwealth intervention did not do so under the terms of the Court of Appeal ruling but under terms prescribed by the royal family. For example, they had to apologise to the King for supposedly bringing the "good" name of the monarchy into disrepute. The Commonwealth Secretariat made much of its partial success in persuading the Government of Swaziland to repeal the controversial Non-Bailable Order, which partially contributed to the 2002/4 rule of law crises. Under this law, people held for offences such as high treason, murder or attempted murder were denied the right to apply for bail.
It is obvious that the regime has no more respect for the rule of law in 2006 than it did in previous years. It has simply learned to be a little more covert and devious in its repression because it has learned that overt intimidation of the judiciary has costs. Thus, although the Non Bailable Order was repealed, the regime has simply used new tactics to achieve the same goal. Currently, the regime's tactic is to abuse established legal procedures in order to detain suspects for prolonged periods without the inconvenience of having to justify these detentions in court. This is clearly illustrated in the current case, where the regime's capacity to delay the bail hearings without good cause has achieved the same outcome as the Non-Bailable law. The bail hearing is scheduled for March and by that time, some of the detainees will have been in prison for 3 months.
The regime has thus sought to indirectly bypass and emasculate the judicial process rather than direct interference. Whereas the regime has previously sought to control the judiciary by direct physical intimidation, now it seeks control through abuse of legal processes and its power as an employer. Most senior judicial officers, particularly judges of the High Court, serve under short-term contract arrangements. These conditions are counter-productive to the ethos of the independence of the judiciary and have placed members of the judiciary on a tight leash. Consequently, judicial activism in Swaziland is virtually nonexistent and the courts are helpless in protecting their integrity and Swazi citizens against state abuse. Whether by the Non-Bailable Order or by the current tactics, the outcome is that sixteen people are being tortured in prison without even hearing a detailed account of the charges against them.
Thirdly , as argued in our previous analysis of the arrests, the prolonged detentions constitute severe punishment against citizens who as yet have been convicted of no crime. By delaying the case, the state is abusing the court process to inflict as much pain as possible on the detainees. The detainees are held in degrading conditions with appalling sanitation facilities. At the Big Bend Remand Centre , where PUDEMO's Secretary-General is held, 70 prisoners share one toilet which is often blocked because of overuse. Buckets are then used in overcrowded holding cells as alternatives. There are also reports of continued beatings in detention. PUDEMO Treasurer-General, Vusi Mnisi, was granted a rare visit to the Big Bend Remand Centre. Detainees there told him that they have no clean drinking water, they are being denied access to medical services and are exposed to life-threatening diseases such as malaria. Some of them have injuries sustained during torture and have not been taken to a doctor for more than a month. Prison officers have refused offers from relatives and friends to bring clean drinking water and food to the detainees. By delaying the bail hearing, the government is able to force the detainees to serve another month in inhumane conditions.
Lawyers representing well-known PUDEMO activist, Mphandlana Shongwe, complained at the Manzini Magistrate Court during a remand hearing that their client is being held in solitary confinement at the Matsapa Maximum Security Prison (see Swazi Observer, January 26, 2006). They expressed serious concerns about Shongwe's health and requested the Court to issue an order to have him removed from solitary confinement. The prosecution pretended to be ignorant and used the usual delaying tactic by requesting more time to investigate this issue. Magistrate, Nondumiso Simelane, ruled in favour of the prosecution and rescheduled the matter to 2nd February. Meanwhile Shongwe remains in complete solitary confinement in a very small holding cell. According to The Swazi Observer (Ibid), prison authorities claim that Shongwe is a security risk because they suspect that he might incite a prison revolt.
In essence, the regime is carrying out a sentence on the detainees without ever having the case heard in court. Furthermore, we believe that the detainees are suffering psychological torture in many respects, including the indefinite nature of the detentions and the way in which the regime is able to abuse the judicial system with apparent ease. Denying detainees access to medical services, clean drinking water, exposing them to health hazards and holding a person in solitary confinement is inhuman. It is premeditated cruelty and degrading treatment intended to punish the detainees. All these amounts to physical and psychological torture. Article 1(1) of The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as:
…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
In his speech marking the International Human Rights Day on December 10, 2005, Commonwealth Secretary-General Don McKinnon, called for collective action against torture:
wherever it rears its ugly head, and to champion the cause of protecting and aiding those who fall victim to torture…We must remember and champion the rights of any person facing persecution, torture and other human rights abuses. We must acknowledge, too, that inexcusable human rights abuses continue to occur and we must use every resource available to bring such practices to an end.
However, under the leadership of Don McKinnon, the Commonwealth Secretariat has stood in the way of the pro-democracy movement in Swaziland and provided unwavering support to a regime that practices torture. Many international organisations have raised concerns about the detention of pro-democracy activists and the practice of torture in Swaziland. It is astounding that the Commonwealth Secretariat has never questioned gross violations of human rights in Swaziland including the recent torture to death of an innocent woman married to one of the detained pro-democracy activists. The Commonwealth seems unconcerned as it shockingly continues to promote the regime as a symbol of democracy. On its website, the Commonwealth Secretariat displays a caption of King Mswati III presenting the Draft Constitution in 2003 to promote the organisation's ideal of democracy and good governance.
On the other hand, the Commonwealth refuses to work with the pro-democracy movement and actively frustrates efforts by the broader Swazi community to bring about meaningful democratic changes in Swaziland. From 1996 to 2005, the Commonwealth supported and defended a royal family stage-managed constitution making exercise that discriminated against the pro-democracy movement and all civic groups. From its inception, the exercise suffered massive legitimacy problems as the majority of Swazis rejected the discriminatory practices and lack of direction associated with this exercise.
As evidenced in recent developments, this crisis and lack of direction have deepened. When King Mswati III signed the Constitution Bill of 2005 into law, he told the public that the Constitution would come into effect after six months without giving a specific date. However, no legal instrument was ever published to stay the operation of the Constitution to a specific date. The phrase "after six months" is incredibly vague and the public was left to assume that the Constitution would take effect a day after the end of the six month period. Even the Prime Minister made this assumption and embarrassed himself when he told the President of Tanzania that the Constitution would come into effect on January 26, 2005 (see The Swazi Observer, January 24, 2006). After his return from the African Union summit in Sudan, the Prime Minister, Themba Dlamini, was made to eat humble pie when he was hauled in to the royal palace for disciplinary action. The king is the only person who has the final say over the date on which the Constitution will come into effect and he, incredibly, is silent.
This is just another example of how King Mswati III holds the Swazi nation in contempt. It shows that he has ownership of the constitution, not the people. On January 26, 2006, civic and pro-democracy organisations led by the trade union movement presented a petition to communicate just that - that the Swazi nation renounces the constitution. Combined, these formations represent a significant section of the population. From previous experience, it is certain that the government will ignore this because it is not accountable to the public. Even if this petition does not result in immediate action by the government, it is a critical development because it has delegitimised the Constitution and recorded for posterity the Swazi people's resistance and refusal to be silenced. The current regime will not stand in the face of gathering local and international exasperation with the regime's lack of genuine change. The so-called "constitution-making exercise" has been a smokescreen for the regime for 8 years but it no longer has this to hide behind. Its fraudulent pretence at change is becoming painfully obvious to even the most reluctant observers and the Swazi people must know that change will come.
While the regime is in power, it may feel to the Swazi people and to members of the regime that it is going to last forever. But this is not the case and history tells us that even the most oppressive regimes eventually fall. And when they do fall, those who have participated in crimes against humanity, those who have tortured and oppressed their fellow citizens, will be eventually held to account. PUDEMO and other pro-democracy organisations are strong and growing in strength. We WILL bring new governance to Swaziland and provide a system based on law and humanitarian values. Swazis must look forward to that time and although sorely oppressed at this time, can prepare for the changes ahead. Victims and families of victims can keep records of crimes against humanity, of oppression and injustice. These records can include dates, times, places, people and the nature of the crimes. In a functioning democracy, all levels of government are accountable for their actions. This includes the head of government, the police commanders and others in authority who order and permit crimes against humanity as well as those who commit those crimes. There will be no individuals who are untouchable. All are accountable and will be held accountable under the rule of law. All around the world, in Africa and Europe, those who commit such heinous crimes are eventually brought to account.
It is scandalous that the regime continues to find comfort from international organisations such as the Commonwealth. This is one factor helping to delay the inevitable changes ahead for Swaziland. On several occasions, we have challenged the Commonwealth Secretariat to justify and explain its continued support of this evil empire. However, like the regime in Swaziland, the Commonwealth has refused to open dialogue with the pro-democracy movement.
PUDEMO and SWAYOCO appeal to international human rights and humanitarian organisations to write to the Commonwealth and condemn its behaviour in relation to Swaziland. Please also write to the Government of Swaziland demanding that it must, as a matter of urgency, remove Mphandlana Shongwe from solitary confinement and allow all the detainees immediate access to medical services, clean drinking water, food and sanitation.
Address your concerns to:
Mr Don McKinnon
The Commonwealth Secretary-General
Marlborough House, Pall Mall
London SW1Y 5HX
Head of Human Rights Unit
Marlborough House, Pall Mall
London SW1Y 5HX
Phone: +44 (0)20 7747 6500
Fax: +44(0)20 7930 0827
Letters demanding action for Mphandlana Shongwe and urgent access to medical services clean drinking water, food and sanitation should be addressed to:
Mr Absalom Themba Dlamini
The Prime Minister of Swaziland
P.O. Box 395 Mbabane
E-mail: (Secretary to Cabinet): firstname.lastname@example.org
Phone: +268 404 2251/3
Fax: +268 404 3943
Dr. Jabulane Matsebula
Australia, Asia and the Pacific Region.
For more information contact
Kislon P. Shongwe
Deputy Secretary General PUDEMO based in Swaziland
In South African Contact
Dr Gabriel Mkhumane
PUDEMO representative in Africa based in Johannesburg
Cell: 27-82-707-8384 or 27-72-040-8484