Sunday, May 26, 2013

SCANDALIZING THE COURT AND FREEDOM OF EXPRESSION

The Nation and its editor have recently been sentenced to a E200,000 fine or 2 years imprisonment for the contempt of court known as scandalizing the court (to read the judgment, click HERE).  This is a type of contempt of court which makes it an offence to detrimentally affect the administration of justice as a whole, usually by 'scurrilous abuse' or alleging illegal bias of a particular judge or a court.  It does not require a specific case to be affected, which is usually the time when a contempt charge would be brought, for example if a person ignores an order of a court.

But the contempt of scandalizing the court may require a connection to a case, judge or court beyond that of mere observer.  This entry looks at the cases relied on in Attorney-General v Swaziland Independent Publishers Pty Ltd & Bheki Makhubu (the "Swaziland Independent Publishers Case"), to see whether the law of contempt for scandalizing the court for general or post-trial statements has such a requirement.  This entry does not address the merits of the decision, instead focussing on one particular aspect of the offence and its interaction with modern freedom of expression as contained in s 24 of the 2005 Constitution.  

Precedents where trial pending

To explore this, we can put to one side those cases of contempt relied on in the judgment where a pending case was said to be affected. There was no allegation that any particular trial was affected in the Swaziland Independent Publishers Case. In this regard, I note that:  Solicitor General v Radio New Zealand (1994) concerned a media company interviewing jurors in a pending trial; and AG v Newspaper Publishing PLS (1987) involved a British newspaper publishing confidential material which was the subject of on-going proceedings.

The situation is less clear for Rex v Gray (1900) 2 QB 36.  In the Swaziland Independent Publishers Case,  His Honour Justice Maphalala suggests that this concerned post-trial statements.  My research suggests that the proceedings were ongoing and that the journalists had proceeded to publish the very material they had been directed not to publish.  Any clarification on this issue would be greatly appreciated (my email is swazibillofrights@gmail.com).    

Post-judgment comments

Of the cases relied on in the judgment, I have been able to analyse three that relate to material published after a trial has been completed and judgment handed down.  One of these is an old English case, R v Editor of New Statesman (1928), which involved a statement by the paper that one could not expect a fair trial before a certain judge on account of his religious convictions.  

The other two are more recent.  The Australian case of Gallagher v Durack (1983) (HERE) involved the head of a union who was convicted for saying that a court had ruled the way it did in a case involving his union because of a strike by the union during the trial.  The Canadian case of R v Kopyto (1988) (HERE) concerned statements made by a lawyer after a decision went against his client.  Both of these cases involved statements made by a person directly involved in a recently-concluded case.

Mamabolo

This ties into the South African Constitutional Court's decision in S v Mamabolo 2001 (HERE),  which is referred to extensively in the Swaziland Independent Publishers Case.  Mamabolo involved a statement by a spokesperson for a prison that an order granting bail had been made incorrectly and that the prison would not abide the order and release the prisoner.  The South African Constitutional Court upheld the finding that the spokesperson was guilty of scandalizing the court.  As South African media lawyer, Dario Milo, has pointed out (HERE), however, the Constitutional Court stated that the "the scope for conviction on [the charge of scandalizing the court] must be narrow indeed if the right to freedom of expression is afforded its appropriate protection."  One appropriate way of limiting the scope of the offence of scandalizing the court for comments made after the conclusion of a trial, or where the comments do not involve a particular case, may be by requiring that the alleged offender is something more than a mere observer of any case, judge or court.  In Mamabolo, the fact that the spokesperson for the very prison holding the person granted bail was the one making comments about the judgment would seem to satisfy this requirement for a connection between the alleged contempt and the court.  

R v Editor of New Statesman (1928) was decided long ago in an age not accustomed to human rights and a jurisdiction without jurisprudence around freedom of expression as it is defined in the Swazi Bill of Rights.  More modern case law suggests that in order for the offence of scandalizing the court to be made out in respect of comments made after a judgment has been handed down, or where these comments are directed to a particular judge or a court as a whole,  a more direct connection is required between the alleged wrongdoer and the judge or court than that of ordinary commentator.  If that is so, and I am not aware of any supreme court or regional/international body ruling directly on this question, then the the publisher and its editor ought not have been convicted. 

Sunday, February 3, 2013

APPEALS FROM THE TRADITIONAL COURTS

Human Rights Watch has released its World Report 2013.  Unfortunately, it does not cover Swaziland but it does contain some essays pertinent to Swaziland today.  The essays cover:

(1) Traditional values and human rights (click HERE);

(2) Corporations and human rights (click HERE); and

(3) The environment, health and children's rights (click HERE).

The piece on traditional values references a case in Botswana where the High Court overruled a customary law granting inheritance of the family home to the last born male heir.  The elder sisters challenged the law, which had been applied by a customary court, on the basis that it violated their constitutional right to equality before the law - and won (to read the full judgment click HERE).  To date, as far as I am aware, no one has challenged a decision of any Swazi Court at the High Court, partly I think because of the lengthy and intimidating appeals process.  According to the Swazi Courts Act 1951, civil appeals must go first to the Swazi Court of Appeal, then the Higher Swazi Court of Appeal and then to the High Court.  This is a pretty long road for a person dissatisfied with the decision of the local Swazi Court President.  But this lengthy process ignores, I think, the effect of Section 35(1) of the 2005 Constitution which states:
"Where a person alleges that any of the...provisions of this [Bill of Rights] has been, is being, or is likely to be contravened in relation to that person or a group of which that person is a member...that person (or that other person) may apply to the High Court for redress."
This should mean that a person can apply directly to the High Court from a decision of a Swazi Court contravening (as with the Botswanan case) a provision of the Bill of Rights. 

Monday, May 14, 2012

AN ALL-BLACK "PERMANENT" SUPREME COURT

Chief Justice Ramodibedi has noted that the "permant" bench of the highest court in Swaziland is all-black for the first time in its history (see article HERE).  This is truly an historic moment.

In using the word "permanent", it is supposed he was comparing this bench with the "rotational" justices provided mostly by the Commonwealth who fly into the country on short contracts to deal with case backlogs. But it  happened to remind everyone that there is little security of tenure for judges in Swaziland.  "Security of tenure" is the term used to describe the protections a judge has from being fired out of political motivations.  So, for example, judges with security of tenure would be more likely to act without fear or favour in a case involving a pension fund with large landholdings and deep ties to the ruling elite.

Sections 155, 156 and 158 of the 2005 Constitution seemingly guarantee that once a judge is appointed as a "substantive" office holder, s/he will hold that position until the age of 75 years, or until s/he retires, or until s/he is removed from office for "serious misbehaviour" or "inability to perform the functions of office arising from infirmity of body or mind."  The reality is somewhat different.  As far as I can tell, all the judges of the superior courts are on fixed contracts for a specified term.  Worse, the majority are officially only "acting" judges, whose terms are for less than six months.

This is a far cry from the sort of "permanence" laid out in the 2005 Constitution.  Without security of tenure, the judiciary in Swaziland is unlikely to be as independent as it should be.

Thursday, May 3, 2012

WORLD PRESS FREEDOM DAY 2012

Freedom House, an international non-governmental organization interested in media and other freedoms, has released its press freedom rankings, as it does every World Press Freedom Day.  Swaziland is ranked 168 out of 197 countries (HERE).  That's down two places from last year.


Friday, February 24, 2012

CONSTITUTION MAKING

A well-regarded handbook on the process of constitution-making has been released (click on this link):

Constitution-Making Handbook (Interpeace, 2011)

It argues that the process of making a constitution is more important than what the constitution itself actually says.   It states that the essential guiding principles of successful, modern constitution-making are:  public participation;  inclusiveness (including gender equality) and representation;  transparency;  and national ownership.

We can compare whether the process that resulted in the 2005 Constitution in Swaziland was guided by these principles by reading the International Bar Association report:

Striving for Democratic Governance, 2003 (PDF document - quite large)

Look at pages 4-6.

Friday, November 18, 2011

INDIRECT CLAIMS AGAINST HIS MAJESTY

A good article in the Times of Swaziland today outlines one reason the legal profession is so irate with the Chief Justice (HERE).  A lot of the anger stems from a directive that bans "indirectly" naming His Majesty as a respondent in any legal claim. But how is the Registrar of the Court (the person responsible for accepting and filing legal claims) to know when such a claim begins to tread on the cloth of the King and iNgwenyama?  One can hardly turn over a stone in Swaziland without finding some remnant of the Royal family there.  And even before this, how could a lawyer make this determination?  The case that started this whole mess only involved members of the police and the King's Office (HERE).  If members of the King's Office are granted the legal immunity of the King (s 11) and iNgwenyama (s 228), does this extend to Ministers of the Crown?  Chiefs? 

Bear in mind that probably half the legal profession nurture the vague hope of being some sort of senior government official or minister somewhere along the line.  From that point of view, the job of being a lawyer under such conditions becomes impossible.

Written law only works to the extent that words are attached to some meaning, and there is a clear path to amend the meaning or discuss the words.  Sections 11 and 228 relating to the legal immunity of the King and iNgwenyama should be given shape the same way as any law is given shape, through court cases.  The Chief Justice's directive circumvents this by using a 'procedural power' (regulating the administrative functioning of the courts) to make 'substantive law' (about the scope of the immunity of the King and iNgwenyama).  This would seem to be 'ultra vires' (beyond the power) of the Chief Justice's authority.

More obviously, for anyone with a claim that is prevented by this directive, it violates s 21 the right to a fair hearing, which states that "[i]n the determination of civil rights...a person shall be given a fair and speedy public hearing."  It is unclear whether s 35 (standing) would allow any lawyer or person to challenge the directive on this ground. 

Wednesday, October 12, 2011

SUMMARY OF SWAZILAND UPR

The International Service for Human Rights (ISHR) in Geneva has produced a summary of Swaziland's universal periodic review (UPR).

It notes that Swaziland claimed it was considering ratifying the Optional Protocol on the Convention Against Torture (HERE).  

Key recommendations out of Swaziland's UPR include:

  • Take immediate measures to ensure the independence of the judiciary.
  • Ease legislative requirements regarding the registration of independent media.
  • Allow for the registration and operation of political parties and ensure free, transparent, and regular elections.
The full summary can be read HERE.

For further information about removing the ban on political parties, see my blog HERE.