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NATION EDITOR TO RESPOND TO AG ON KING APOLOGY LETTER

02/02/2022 08:14:00 Kwanele Dlamini

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MBABANE – “I will be responding to the AG.”

This was said by The Nation Magazine Editor, Bheki Makhubu, yesterday when asked if he had seen a letter that was issued by government demanding an apology for publishing an article, which it deemed a malicious attack on the King. Makhubu also said: “I’m sure whoever leaked it (letter) to you will leak my response to you as well.” The article in question, according to the letter, which is dated January 27, 2022, addressed to the editor of the magazine, was published on page 23 to 25 of the January 2022 edition under the banner headline; ‘King still ignores the law when it suits him’. It was written under the byline of Nimrod Mabuza. The letter was signed by the Attorney General, Sifiso Mashampu Khumalo. The attorney general informed The Editor of The Nation, Makhubu, that the article was untrue. He said it was a malicious attack on the person and office of His Majesty the King.

Reckless

According to government, a false, unfounded and reckless impression had been deliberately created upon the wide readership of the magazine, to the effect that King Mswati III defied court orders and had instructed Correctional Services personnel to ignore the High Court judgment in the case of one Bheki Boyce Gama. Boyce of KaLanga in the Lubombo Region was convicted and sentenced to death for murder and robbery by the High Court on September 23, 1993. The conviction and sentence were confirmed by the Court of Appeal. The sentence was commuted to life imprisonment, with the condition that he would be released upon attaining 75 years of age. However, after serving 23 years, he approached the High Court arguing that he should be released since he had served a life sentence. The court ordered that he be released. Government appealed against the decision of the court. The appeal is still pending at the Supreme Court.

The attorney general, in the letter to the editor of the magazine, said while it was true that the High Court had ordered the release of Boyce, ‘it is certainly not true that the King ordered his detention despite the court order’. “Instead, the director of public prosecutions, Prerogative of Mercy Committee, His Majesty’s Correctional Services and attorney general appealed against the High Court judgment. The fate of the appeal is pending determination by the Supreme Court. “The fact of there being a pending appeal in the matter is readily acceptable by the registrar of the Supreme Court, the attorney general’s office and Mr Gama himself or his new lawyers at V.Z. Dlamini Attorneys. It boggles the mind why you did not verify this fact before going to print,” wrote the AG. The AG stated in the letter that ‘by hereof, it is demanded of you that you do with equal prominence in your next edition, publish a retraction of, and an apology for the offensive article’.

Stability

“In the meantime, the attorney general reserves the right to escalate the issue to the next level. You would do well to give your written undertaking that you shallstabilityand apologise as herein demanded. “We trust that you shall treat this as a learning curve for your publication to strive to strike a healthy balance between societal press freedom and the reputation and rights of individuals as envisaged in Section 24(3)(b)(i) of the Constitution,” the letter further read. Boyce’s matter was heard by a full bench of the High Court, comprising the then Principal Judge Stanley Maphalala, Judge Jacobus Annandale, who are both now judges of the Supreme Court, and Judge Qinisile Mabuza –the current principal judge. Respondents in the matter were the chairman of the Prerogative of Mercy Committee, commissioner general of His Majesty’s Services, the director of public prosecutions and the attorney general.
Boyce told the court that on November 6, 2001 he received pardon which ‘communicated the death sentence imposed by the Court of Appeal, to that of life sentence with the condition that the convict shall, on the attainment of the age of 75 years, be unconditionally released from custody’.

He had approached the court after serving 23 years of his sentence, seeking an order reviewing, setting aside and/or correcting the condition of the pardon recommended by the Prerogative of Mercy Committee that he may only be released on attainment of the age of 75 years. He also wanted an order declaring that he had served a life sentence in the form of the pardon recommended by the Prerogative of Mercy Committee and that he be released from custody, for the reason that he had served his sentence.

Constitution

Boyce contended that in terms of the Prison Act No.40/1964, a life sentence translated to 20 years and in terms of the Constitution, to not less than 25 years. He argued that in both aspects, he had completed a life sentence in terms of the law, hence the court application. Having heard the arguments, Judge Maphalala said the court was mindful of the fact that the Constitution was not promulgated when Boyce was sentenced to death and when he was granted a pardon which commuted the death sentence to life imprisonment. “We consider the relevant section in the Constitution as a compelling guideline and benchmark. What was relevant at the time of his imprisonment was the relevant section in the Prison Act No.40/1964,” said Judge Maphalala.

The court went on to grant an order reviewing and setting aside and/or correcting the condition of the pardon recommended by the Prerogative of Mercy Committee, that Boyce may only be released on attainment of the age 75 years. It also declared that Boyce had served a life sentence in form of the pardon recommended by the Prerogative of Mercy Committee and further ordered that he be released from custody for the reason that he had served his sentence.

Judgment

The judgment was delivered on October 5, 2017. Boyce was represented by the late Leo Gama, who was based in Manzini while Principal Crown Counsel Ndabenhle Dlamini appeared for the State. On January 15, 2020 the convict appointed V.Z. Dlamini Attorneys after the death of Leo. On October 6, 2017, government filed a notice of appeal ‘upon considering the judgment of the High Court handed down on 5 October 2017 in the High Court Civil Case No.191/2015’. Government’s grounds of appeal were that the High Court erred in law in proceeding to hear the matter notwithstanding that its functus officio (previously dealt with the matter) status and that it erred in law in holding that the age condition attached to Boyce’s pardon was unlawful and had to be excised. The other ground was that the High Court erred in giving precedence to the Prisons Act over the Constitution.

Since the appeal was not prosecuted ever since it was filed on October 6, 2017, Boyce, through V.Z. Dlamini Attorneys, filed an application that the appeal be deemed abandoned. Section 78 (5) of the Constitution of the Kingdom of Swaziland reads: “Whenever any person has been sentenced to death by any court in Swaziland, other than a court martial, the chairman shall cause a report on the case by the judge who presided at the trial (or, if a report cannot be obtained from that judge, a report on the case by the Chief Justice), together with such other information derived from the record of the case or elsewhere as the chairman may require, to be taken into consideration at the meeting of the Committee so that the Committee may advise the King whether or not to exercise the powers in terms of subsection (1).”

Imprisonment

The said Subsection (1) provides that the King may, in respect of a person sentenced to death or life imprisonment grant pardon, either free or subject to lawful conditions; grant to any person a respite, either indefinite or for a specified period. The king can also substitute a less severe form of punishment for any punishment imposed on any person for such an offence or remit the whole or part of that sentence, penalty or forfeiture otherwise due to the government on account of that offence. The Committee on the Prerogative of Mercy is made up of two persons drawn from the King’s Advisory Council; the Attorney General; the Minister of Justice and a medical practitioner recommended by the Minister of Health.