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.