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Friday, November 6, 2009
6 November, 2009
Testing the test for election laws
THE litmus test for an election result to be declared null and void will be tested when the Supreme Court delivers a judgment on the last election dispute on November 27. In legal terms, the court can declare an election result null and void if the number of votes to be declared spoilt is enough to add up and give the election contender a majority stake.
In the case between election looser Thulisile Nyakura and the EBC and 41 others, such a test was said to be inapplicable for Swaziland.
Nyakura's (nee Simelane) lawyer, Mangaliso Nkomondze says Swazi courts should not be made to conform to South African courts where the elections are held under a different dispensation.
Nkomondze says his client lost the election for Eluhlangotsini Bucopho unfairly.
He argued that respondents four to 41 were not residents of Eluhlangotsini hence they should not have voted there. Though this is disputed by the EBC and the other lawyers representing the other respondents, Nkomondze says the Judges should consider the disparities in the elections held in Swaziland and those in South Africa. The matter was heard by Judge Ramodibedi, Judge Magid and Judge Ebrahim.
Judge Ramodibedi asked Nkomondze why his client was contesting the results of the elections yet she had lost with a huge margin of over 100 votes.
This was when Nkomondze said the election was not free and fair.
Then the court asked: "If your client had won the elections, would she still make the application because the elections were not free and fair?"
Nkomondze said even if the election was won by his client, she would still be challenged by those who would have lost it. "She is aggrieved about the EBC running the election in an irregular manner," he said.
When asked to elaborate on the test for setting aside an election result Mkomondze said the Swazi electoral laws were too outdated and open to manipulation. "The test has been imported from outside the country. The test cannot be applied here," he said.
Friday, March 27, 2009
Times of Swaziland
27 March 2009
EBC wins, say Judges Agyemang, Maphalala
MBABANE—Parliamentarians can sleep easy knowing that the High Court has dismissed an application brought by the Swaziland Coalition of Concerned Civic Organisations (SCCCO) against the Elections and Boundaries Commission (EBC).
A High Court full bench consisting of Judges Stanley Maphalala, Qinisile Mabuza and Mabel Agyemang yesterday sat to give a final ruling on the urgent application brought by the Coalition to challenge the constitutionality of members of the EBC.
Judge Agyemang found that the points of law raised by the government were valid and must stand. She dismissed the Coalition’s application but ordered that each party pays its own costs.
However, Judge Agyemang found that the Coalition should win with regards to their fifth prayer, where they wanted the court to declare that the EBC and its members had no legal right or power to exclude or preclude persons or groups such as the Coalition from providing voter education to members of the public.
Judge Agyemang said they agreed that the Coalition’s application should be dismissed but said their reasons were not the same as those argued by the Attorney General.
She said because the Coalition was not a legal person, therefore the suit it had brought in its name must fail for lack of capacity.
"It is our view that the present suit cannot be maintained because same has been brought in the name and also on behalf of the Swaziland Coalition of Concerned Civic Organisation Trust, an organisation registered under Trust Deed as a charitable trust and which is thus not a citizen of the Kingdom of Swaziland as envisaged by the provisions of Section 2 (2) of the Constitution. We say this because it is our view that a ‘citizen’ as opposed to a ‘person’ must necessarily be a natural person who can enjoy and exercise civic groups and responsibilities such as exercising his franchise by voting, being entitled to hold a passport, amongst other things," reads Judge Agymang’s judgement in part.
She added that it was unfortunate that members of the Coalition had ceded their rights to challenge the EBC in their personal capacities but chose to use the Coalition, an organisation she said had no locus standi.
Judge Maphalala agreed with Judge Agyemang, leaving only Judge Mabuza to dissent on the merits of the matter. The judge said some of the allegations against the EBC contained in the Coalition’s founding affidavit were not factual. She said some of it were conjecture, while others were mere expressions of opinion.
Tuesday, November 4, 2008
4 November 2008
Swaziland should look again at its constitution, this time ensuring that there is full consultation with the people, civic society and political organisations.
This s a major recommendation from the Commonwealth Expert Team (CET) members that were official observers of the elections in Swaziland in September.
The CET said that the elections were not entirely credible because the constitution banned political parties and members of parliament had few real powers.
In its report on the election, just published, the CET says revisiting the constitution is necessary to ‘ensure that Swaziland’s commitment to political pluralism is unequivocal’.
It says that review of the constitution ‘should be carried out through a process of full consultation with Swazi political organisations and civil society (possibly with the support of constitutional experts).’
The CET went on to say that the election was not credible, even though a new constitution has been introduced in Swaziland since the last election in 2003.
The CET states, ‘Swaziland has now adopted a new Constitution, which affords the nation an opportunity to make democratic progress. The real challenge is to gain the confidence of the democratic dispensation with an entrenched bill of rights, as is expected of Swaziland in accordance with Commonwealth principles and declarations.’
It added, ‘We also noted our serious concerns on the inherent inconsistencies and contradictions, particularly as they relate to the separation of powers (or lack thereof) and the rule of law. We also expressed our deep concern for the inconsistency and contradictions as they relate to the interpretation of the fundamental right of freedom of association and assembly, where political parties are denied formal recognition, so that they do not have the right to carry out activities which political parties would normally conduct in a multi-party democracy.
‘We believe that the Monarchy and a multi-party democracy are not mutually exclusive, and that a mechanism should be found to insulate the Monarchy from the turbulence of politics.
It goes on, ‘In the modern world, which is complex and constantly evolving, a multi-party democratic system has proved to be the best one for accommodating diversity and well-treasured norms in society. Practical experience has shown that institutions which have been marginalised have suffered. Confidence in the institutional framework to promote a vibrant electorate is vital, as a conscientious, well informed electorate is critical in this day and age. In any country the prevailing political environment influences all aspects of life including social and economic conditions for its citizens. One of the major areas it affects is the constitutional and legislative framework governing electoral processes.’
According to a report from the South Africa Broadcasting Corporation, the Swazi government has declined to comment on the report until it has had a chance to study it fully.
This is a standard response from the Swazi ruling elite to any criticism it receives from the international community. In practice, the government never responds (think of all those criticisms earlier this year and last about the poor governance in Swaziland).
The government thinks it can ignore these findings. It can’t. It is up to democrats to keep pushing the point that Swaziland’s ‘unique’ democracy stands condemned and it must change.
To read the full report, click here.
Saturday, November 1, 2008
Commonwealth News and Information Service (London)
29 October 2008
Posted to the web 30 October 2008
Swaziland: Commonwealth Expert Team Issues Final Report On 2008 Elections
Commonwealth Secretary-General Kamalesh Sharma today released the Final Report of the Commonwealth Expert Team which observed the 2008 National Elections in Swaziland.
Mr Sharma said: "Despite the fact that the Team found that the elections on polling day were reasonably well conducted, they raised concerns about the totality of the electoral process. The Team felt that the reasons for this lay in weaknesses in the current constitutional, legal and electoral framework. These required reforms through a process of consultation and dialogue.
"What is vital now is for the Government and all political and civil society organizations in Swaziland to work together to chart a mutually agreed path for the future development of the country, with a view to ensuring its sustainable growth and stability, in line with Commonwealth fundamental values. The Commonwealth stands ready to assist in that process", the Secretary-General added.
The Report was completed and signed by all members of the Commonwealth Expert Team, prior to their departure from Swaziland. It was presented to the Commonwealth Secretary-General by the Team leader, Dr Paul Ssemogerere, the former Deputy Prime Minister of Uganda. Before being made public, it was distributed to the Government of Swaziland, to Swazi political and civil society organisations, to the Elections and Boundaries Commission of Swaziland, and to all other Commonwealth governments.
Tuesday, October 21, 2008
15 October 2008
Mtiti abused powers - Mahlaba
By Sabelo Mamba
UNIVERSITY of Swaziland Lecturer Mahlaba Mamba has taken former Minister of Agriculture and Co-operatives Mtiti Fakudze to High Court for an order disqualifying him as an elected Member of Parliament under Dvokodvweni Constituency.
Mamba, who is a former Cabinet Minister himself, alternatively wants the court to declare the process and results of the secondary national elections conducted on September 19 null and void.
Mamba, in his affidavit, argues that Fakudze’s campaign was based on a combination of abuse of his powers as minister of State and sheer threats against those who considered voting for another candidate.
He says Fakudze assured the community that he would instruct officials in the ministry of public works and transport to rehabilitate the gravel road from Sigcaweni to Dvokodvweni Constituency and that this would be done before the end of the week.
“True to his words, a dozer arrived in the area within a couple of days and rehabilitated the road over a period of about one week,” he alleges.
Mamba further alleges that Fakudze sent a government tanker to supply water in the area.
He also claims that on the voting day at Malindza High School polling station centre, Fakudze brought voters from areas that were outside the boundaries of Dvokodvweni Constituency. “These voters came from Siweni area, which is under Hlane Constituency,” he states.
Mamba says during the primary elections these voters had actually voted at Hlane Constituency, where they belonged.
“I submit that the issues canvassed above are individually serious enough to taint the elections process with illegality and malpractice,” he argues.
Mamba is being represented by Titus Mlangeni while Fakudze is being defended by Bheki Maphalala.
The case is pending at the High Court.