Courts can’t tell me what to think or say!

Courts can’t tell me what to think or say!

This is an unedited version of the article published by The Times of Swaziland on Wednesday, April 24, 2013 under “As I see it” column.

By Vusi Sibisi

For prolonged agonizing minutes I stared blankly on the screen of my laptop wondering if what I was about to write would be acceptable to the courts as justifiable pursuit of my inalienable right to freedom of expression that is also enshrined in the national constitution of the Kingdom of eSwatini.   

This excruciating dilemma was occasioned by High Court Judge Justice Bheki Maphalala’s unbelievably harsh and irrational sentence against The Nation magazine and its editor Bheki Makhubu that was all numbing to the senses. The magazine and its editor were convicted for being contemptuous of the court and Chief Justice Michael Ramodibedi who shortly upon assuming the position famously referred to himself as “Makhulu Baas” – a name popularly used by the Afrikaners in then apartheid South Africa to cement their superiority over black South Africans - or “Big Boss”.

Never in all my imagination have I ever thought I would live to see the day of this apparent brutal assault on freedom of expression in a country that prides itself of having a political system that lays claim to democratic values and principles. Otherwise there should never have been a case against The Nation and its editor in the first place.

Perhaps had it not been for the fact that much had already been said in blank opinion pages in the major local newspapers at the wake of the High Court judgment, I would also have preferred not to write anything on the subject now that our judiciary has declared itself to be above the national charter, the constitution.

The sum total of the judgment against the magazine and its editor, on one hand, is that the bubble of the state’s long-drawn out insidious assault on freedom of expression finally bursting out into the open. Those of us who have been in the media for as long as we have been can attest to the truism that the media, in particular the once independent media, has been under siege for a long time. Not surprisingly, government has been brazen in its iron fisted control of the state and government controlled media to the extreme of publicly blacklisting even its own lawmakers from communicating and interacting with their constituencies through the national radio and television.

On the other hand, the state is sending out a clear message that it brooks no nonsense from any quarter with a promise to unleash the full might of its institutions to whip everyone into conformity. I am still undecided whether what hurts most in this episode is the apparent ruthlessness the state has embraced to silence and deal with its critics and perceived enemies or is the apathy of the general populace when it comes to such crises. My interaction with the general public at the wake of the court judgment against The Nation and its editor showed frightening detachment of the general populace on the implications of Justice Maphalala’s judgment to their day-to-day lives.

While the public demeanor was sympathetic towards the media practitioners, the people did not see this as their problem and its potential consequences on their lives if left unchallenged. As with many crises that have faced this country in recent times, such as the fiscus problem and the boycotts of the courts by lawyers protesting against the judiciary in general and the Chief Justice in particular to the strike by teachers, the people saw these as other people’s problems and not their own as a collective. Hence pretty soon these crises cease to exist in the eyes of the people without as much as serving as learning curves to ensure that they never reoccur in future and life goes on as normal.

Yet the court judgment at issue does not just apply to the media precisely for the reason that it infringes on the constitution that the people themselves should and are expected to defend. The judgment goes beyond the media in what it can or cannot do. It seeks to make the people think in a certain way and not be critical about issues that germane to the pursuit of happiness and a better life. In a nutshell, the effect of the judgment is that it places the courts above the constitution in that they and the judiciary can no longer be criticized and that the people were no longer free to hold and communicate opinions that are offensive to the senses of those charged with administering our judiciary.

As I see it, in a way the crisis likely to germinate from the judgment at issue is reminiscent to the Liqoqo era in the early to mid-1980s. But although the media was kept under a tight leash then, the courts were spared the embarrassment of having to deal with recalcitrant editors and journalists. That regime dealt with “erring” media and their operatives extra-judiciary through summary dismissals.  However heinous the Liqoqo rule may have been in its brief supremacy, there always was hope for a better tomorrow because somehow we knew that we were in a transitory period and additionally the legitimacy of the regime was always in question. So, there was always a dream of a better tomorrow once the legitimate structures and legitimate leadership were put in place.

Regrettably, the lights are systematically dimming, the future is gradually becoming darker and hope of a better tomorrow is fast diminishing. Now more than ever before we have to fear our leaders even when they have placed their agendas above the rule of law and the national constitution. This is because the court’s affront on media freedom equates to denying the people the right to freedom of expression. And, to borrow from Tara Sonenshine, the United States Under-Secretary for Public Diplomacy, if media freedom is the moral equivalent of oxygen, then the nation is systematically being asphyxiated by Justice Maphalala’s judgment while people are only too happy for a gasp of their last breath.

Personally, I have long lost the confidence of our judiciary because I believe it is politically manipulated and no court judgment, however harsh and brutal it may be, will ever change my opinion.  

  

Why ownership of Swaziland an issue?

Why ownership of Swaziland an issue?

This is an unedited version of the article that appeared on the As I See It column of The Times of #Swaziland of April 17, 2013

               

By Vusi Sibisi

Clearly Chief Gija, head of the Elections and Boundaries Commission, was not misquoted or quoted out of context on his reaction to the news that two political formations in Sive Siyinqaba, alias Sibahle Sinje, and the Swaziland Democratic Party were strategizing on a partnership for the general elections later this year, otherwise he would have disowned the statement attributed to him.

Chief Gija in his response to the strategic partnership between Sive Siyinqaba and the Swaziland Democratic Party (SWADEPA) last week was quoted by this newspaper as having said: “The owners of this country have clearly stated that people will stand for elections in their individual capacities and not through political parties. As for entities such as Sive Siyinqaba, I can just call them clubs formed by people who are like minded. I do not foresee them having any influence whatsoever in the outcome of the elections.”

For the fact that the Kingdom of eSwatini is probably the only country with a dual system of government, the traditional and western-styled systems, much should be read in Chief Gija’s reference to the ownership of this country. This is particularly so when the traditional government is the more senior partner to its western-styled counterpart that, to all intents and purposes, merely acts as the artificial mirror reflecting this country as a modern state and, therefore, normal to the international community. Yet that is all a false façade!

In a nutshell Chief Gija revealed just about everything about the Swazi polity in his utterance that can only be summed up as scare tactics.

As I see it, the fact that Chief Gija, chairman of the Elections and Boundaries Commission (EBC) has remained silent and not disputed his response as quoted by this newspaper is that he was correctly represented and not misquoted or quoted out of context. That, of course, is unfortunate as it is regrettable, because his utterances have created the impression that this the Kingdom of eSwatini is not a nation state because it does not belong to the people but only to a select few whose identities can best be left to conjecture.

But it would be amiss of all of us patriots who hitherto honestly believed we had a stake in a country that we have seriously taken to be our own as a collective as well as individually and to whose development we have contributed immensely physically, intellectually, financially through our taxes and otherwise. That Chief Gija has drawn the line on the limitation of rights of the ordinary folk in contributing to nation building, because that is essentially the import of his reaction, was as good as opening a window into the inner workings of this country’s unique system of governance that lays claim to democratic credentials.

As it were Chief Gija and his ilk who are predominantly the apologists and apparatchiks of the obtaining political dispensation lanced the boil on the head; the leadership, and indeed the obtaining political system, does not recognize us in our collective but only as individuals in typical fashion of the archaic doctrine of divide and rule. And that is why there deafening silence on many critical matters of state, such as the many flaws of the current political system and its apparent excesses, which the leadership conveniently interprets as peace and tranquility occasioned by the manner in which its exercises its political power.

Paradoxically, but not surprisingly so,  Chief Gija’s assertion is a radical departure from the leadership’s traditional defence of the Tinkhundla political system that it was chosen by the majority of the people over other political systems, specifically over multiparty democracy. Now at the wake of Chief Gija’s rather illuminating explanation we know that the people are but silent passengers, if not stowaways, in the ship of state with no say on how they are or should be governed and generally on all national matters that directly affect them simply because this is an exclusive preserve of the so-called owners of the country.

As I see it, the truth always has a way of asserting itself however much it can be suppressed. And we now know that political power does not resides with the people hence the fatally flawed obtaining political hegemony that purports to vest political power on individuals other than the Swazi collective or collective entities such as political parties. This is understandable from the context that it is easier to deal with and manipulate individuals than it is to control and suppress a people united by a common bond or persuasion. That is the legacy of the Tinkhundla political system, which is an affront to democratic values.

Perhaps as a traditional leader, Chief Gija, as with his ilk, has a one dimensional view of the world, which would be the bedrock of his political power base that informs his perspective of Swazi polity. To this end that would translate into meaning that the post-2005 era of constitutionalism has in from his perspective not transformed the Swazi polity, especially in separating and defining the divide between the dual systems of government being traditional and western-styled in order to assist the likes of Chief Gija to have a clearer appreciation of the political evolution of the Swazi nation. The situation has also not been helped by the fact that the constitution is applied selectively when it suits the leadership and is not the universal political bible that informs the progression of the country and the Swazi nation.

As it were the western-styled government is subordinate to the traditional leadership that is essentially steeped in the past and carries with it a train-load of ambiguities that drive, if not define, the Swazi polity. It is these ambiguities that are responsible for the complex political and socio-economic crises that have manifested themselves in recent times. Thus while there is talk of making this a First World country the traditional machinery continues to hold back this country from its natural progression of transforming into a modern nation state anchored on a constitutional order that upholds the rule of law and the sanctity of the human being.

Ultimately, Chief Gija and the like-minded of the political status quo are drowning in the misguided notion that the only rights accruing to the Swazi nation are those that are appropriated by the leadership. In the event the leadership is wielded as a scarecrow whenever the people demand was is inalienably theirs, as ably attested to by Chief Gija’s unfortunate but true position about the ownership of this country.

The question begging for answers, therefore, is not about who owns the country but rather for how long the people will continue to be denied their God’s bestowed inalienable rights.

    

On whose mandate is Cabinet in office?

On whose mandate is Cabinet in office?

This is an unedited version of the article that appeared on the As I See It column in The Times of Swaziland of April 10, 2013

By Vusi Sibisi

The controversial call last week by Health Minister Benedict Xaba for the retention of the current Cabinet must not be looked at generally or in isolation because it might lead to wrong conclusions but must be viewed from within the context of whether or not Cabinet had fulfilled the mandate it was given to fulfill.

Before anyone accuses me of having taken leave of my senses at the wake of overwhelming public loss of confidence in the Cabinet as ably communicated during last year’s Sibaya, the People’s Parliament, coupled to the now controversial but constitutional no confidence resolution on Cabinet by the people’s elected representatives in parliament’s House of Assembly, hear me out.

In politics, as with the relationship between an employer and an employee, it is taken for granted that the continued subsistence of political tenure for Cabinet Ministers or other politicians is hugely depended on them doing or performing in accordance with the mandate of their political master, who in the labour market would be the employer. Alternatively, should the political principal, as with the employer, be unsatisfied with the performance of the Cabinet collectively and individually, he may decide to terminate its or their services.

While the labour market and indeed the relationship between the employer and employee are regulated by law, the same cannot be said about politicians. Thus once an employer engages the services of an employee his/her authority is to a large extent abdicated to the prevailing statutes that regulate the newly consummated relationship. While it is easier for the employer to engage the services of an employee, it is not a walk in the park to disengage or terminate the relationship unless the requisite law is followed to the letter. Similarly, an employee’s continued contract and, indeed, their upward mobility is determined by their ability to meet the objectives for which the position was created through periodic processes of assessments and appraisals.

In a nutshell, in the employment relationship everything is transparent, or ought to be if one is not in transgression of the relevant enabling laws, from the recruitment or hiring processes and in addition is underpinned by predictability. In the event where there is a perception that the relevant laws have been contravened there is room for a number of interventions leading to the courts of law for ultimate adjudication in the event the parties remain irreconcilable on their differences or in the interpretation of the law after exhausting the other processes.

But do similar sets of rules apply in the realm of politics? Until July 26, 2005, the date on which the national constitution was promulgated, there was decidedly no discernible uniform set of rules to which our politicians, specifically Cabinet, were accountable. But once the constitution came into force it was largely assumed that it established the basic mandate for politicians and Cabinet, in particular, that they were in the service of the country and the nation at large. That was until last year when, initially, the people at Sibaya and later on their elected representatives in parliament, the House of Assembly to be precise, decided that the Cabinet was no longer serving their best interests and that, therefore, it should be sent packing.

As I see it, while the constitution established Sibaya as the supreme advisory body without delving on specifics, it nonetheless was clear when apportioning the authority on parliament, the House of Assembly, to decide on the dissolution of Cabinet through a vote of no confidence if and when this became desirous. First, it was the people at Sibaya who called for the dissolution of Cabinet and later this call was not just echoed but was endorsed by the elected representatives of the people in the House of Assembly who duly passed a no confidence resolution on the self same Cabinet that Minister Xaba last week recommended should be retained for a job well done.  

With the so-called supreme law of the land, the national constitution, having been nullified by the leadership by side-lining people’s views and recommendations at Sibaya and failure or refusal to authenticate the resolution of no confidence on the Cabinet by Members of Parliament, no one in the public gallery has any inkling on the mandate of the Cabinet right now. It can only be assumed that it is the Cabinet, and not the people, which has a clear picture on its mandate and it is probably on this basis that Minister Xaba made his observations and, as it were, his conclusions. In that case we, the people, should also conclude that Cabinet, indeed government, is not primarily in the service of the people as we had initially assumed or rather we were made to believe by the constitution that is selectively implemented on the whims of the leadership. What has become crystal is that the people serve and are subservient to the government hence the uniqueness of the Tinkhundla political system.

As I see it, the present Cabinet might as well be retained in the new government after general elections later this year if its political masters are pleased with its performance, as it seems to be the case by reason that it remains in office to date, in spite of the fact that it might well be the worst Cabinet ever to be in office if its failures are matched against its successes, that is if any. And that was apparently also the verdict of the people at Sibaya as well as through their elected representatives in parliament notwithstanding that their voices count for nothing when it comes to major political decisions impacting on the kingdom and the nation at large. The truism is that ultimately Cabinet, indeed government, is not responsible and answerable to the people hence Minister Xaba’s stated position.

Noose tightening on Tinkhundla

Noose tightening on #Tinkhundla

This is an unedited version of “As I See It” column article that was published by the #Times of Swaziland on Wednesday, March 27, 2013.

By Vusi Sibisi

The noose is tightening on this our beautiful Kingdom of eSwatini over its continued resistance to transform into a modern democratic state while the leadership remains ensconced in its natural habitat of denial pretending all is normal within the Tinkhundla-driven Swazi polity even when its twin-pillars, the constitution and Sibaya, dramatically collapsed last year in front of our disbelieving eyes.

The latest indicator in an increasing crescendo of voices calling for political pluralism comes from the European Union (EU) whose Director for Southern and Eastern Africa at the European External Action Service, Koen Vervacke, last week called on government to allow political parties to become players in the country’s political space. While the EU respected that democracy was not a one size fits all, Vervacke said it was important that internationally accepted principles were respected and adhered to.

Vervacke’s two-day visit to these shores last week came on the heels of a fact finding mission by EU ambassadors last year. It is reasonable to conclude that the EU position, as articulated by Vervacke, was informed by the findings of that ambassadorial mission to this country. In all instances, the EU officials, including Vervacke, interacted with both the leaders and the wider civil society, including proponents of multiparty democracy and other civic organizations, to get a holistic picture on the obtaining Swazi polity.

But even before the EU’s double-pronged mission to this country, the former colonial master, the United Kingdom, had called for multiparty democracy. Last November British Foreign Office Minister Mark Simmonds told the House of Commons, the equivalent of the House of Assembly in the local parliament, that the UK continues to urge the Swazi government to ensure that all political parties are able to operate freely and participate in this year’s elections.

Earlier this month, United States Deputy Assistant Secretary of State in the Bureau of African Affairs in the State Department, Reuben Brigety II, issued a veiled threat apropos the renewal of the American Growth and Opportunities Act (AGOA), which essentially extends preferential trade to qualifying countries to access the American market. As it were the country’s imported textile industry was built on the opportunities deriving from AGOA. The American diplomat pulled no punches when he said for this country to continue benefitting from AGOA it has to have strong democratic credentials, in what was perhaps the strongest language ever to come from the US on the kingdom’s continued refusal to open up the political space to multiparty democracy.

And closer to home, the regional political and economic superpower, the Republic of South Africa, has also voiced its concern about the continued banning of political parties. At the height of the kingdom’s fiscus crisis in the past two to three years, the SA government came out with stringent conditions for an E2.4 billion bail-out loan that the country wanted, which included political, financial and economic reforms. At its Mangaung, Bloemfontein, conference late last year, the ruling African National Congress recommitted itself to the democratization of the country.

The latest offering from our giant neighbour is that of using receipts from the Southern African Customs Union (SACU) to coerce the Swazi leadership to embrace multiparty democracy. SACU receipts account for over 60 percent of the kingdom’s annual budget. In fact the SA government has come under heavy criticism from its legislature for what that country’s Parliament Portfolio Committee on International Relations and Cooperation said was a soft spot for the kingdom relative to how it was dealing with Zimbabwe.   

As I see it, these indicators all point to a hardening of attitudes towards the leadership of this the Kingdom of eSwatini. But what has been the state’s response to the mounting pressure for political reforms? Comical, just about sums it all up, if government’s spokesman Percy Simelane’s ripostes are anything to go by. But even Simelane himself has been finding it increasingly impossible to be innovative when defending the indefensible and of late is given to using the constitution as his last line of defence. What constitution when the one he refers to has been breached with such consummate ease by its supposed supreme protectors to the point that it barely exists?

By now it has become academic to even enumerate on the many instances that the leadership has turned a blind eye to the existence of the so-called supreme law of the land. But even in its virgin form, the constitution’s standing could hardly be said to have been universal ostensibly because of the manner it was enacted. As is normal within these shores, the processes of enacting the national charter were not credible because they departed from international norms and practices and were not all-inclusive. And once its drafting had been completed, it was never passed by the people in a referendum, a universally recognized forum that insures acceptance and credibility, but was shoved down their throats. Any wonder, therefore, why even the people could not come to its defence when it is overlooked and by-passed by those holding the reins of political power.

Alongside the demise of the constitution, which had become a refuge of choice for the ruling elite whenever the Tinkhundla political system was criticized for its skewed democratic credentials, the revered institution of Sibaya also crumbled. This followed the failure of the leadership to implement the wishes of the people, if indeed it is representative of the majority, such as dismissing the entire Cabinet – a call later echoed by their elected representatives in parliament when they passed a no confidence resolution on the Cabinet that was abortive when the powers that be failed to follow the dictates of the constitution – as well as, among others, calling for the prime minister to be directly elected by the people. The only thing the people had demanded during Sibaya that was implemented was the reinstatement of teachers who had summarily been dismissed for participating in what is popularly referred to as “Waya Waya” strike that had in fact precipitated the convening of Sibaya. But even that was a half measure because the salaries of the reinstated teachers have been withheld or deducted exponentially to the number of days they were on strike.

As I see it, it is the refusal of the ruling elite to transform the country from a fiefdom into a modern state that is at the core of their refusal to embrace real democracy other than the misconception represented by the Tinkhundla political system experiment that too has never been embraced by the people in a referendum. The overwhelming fear for pluralistic politics by those holding political reins is the loss of political clout - which comes with substantial benefits - that would naturally evolve to the people when a truly democratic dispensation is ushered in to replace the obtaining political hegemony. 

 

Deny, the leadership might, the tightening noose on the country but the reality check will come sooner rather than later. It is this country that depends on each of these powers with a grip on the noose that could snuff the life out of this country. South Africa, as the regional superpower and the kingdom’s primary trading partner, can tighten the screws on a number of areas that could negatively impact on the nation. The EU could simply review the preferential treatment of our major export, sugar, to its markets while the US could withdraw our access to AGOA. These could have dire ramifications for the country’s development unless the leadership wakes up to the reality that you can fool some of the people some of the time but certainly not all the people all of the time.

The ball is in the court of the leadership to decide the kind of future this country will have. That the leadership has the platform from which to continue misrepresentation of what is obtaining on the ground, will not necessarily resolve the political impasse. The time for transforming this country from a fiefdom wherein the respect of state institutions and the rule of law is not an option into a truly modern nation state in which all organs of state are accountable to no one else but the people.

The clock is ticking…!