16 April 2008
Qinisile quits elections case
By Sabelo Mamba
HIGH Court Judge Qinisile Mabuza has recused herself in a matter in which political parties and unions are challenging the appointment of members of the Elections and Boundaries Commission (EBC).
As a result, Chief Justice Richard Banda postponed the case in his chambers yesterday sine die (indefinitely). Though reasons for her decision to recuse herself could not be ascertained, it is understood that there is an appeal involving her in a similar matter. On the full bench, Justice Mabuza will be replaced by a Commonwealth judge expected to arrive in the country on the 1st June, this year.
The CJ explained to the media that the court could no longer constitute a full bench comprising three judges to preside over the EBC case since Justice Mabuza had recused herself.
Justice Banda, however, preferred not to disclose the reasons for the judge’s decision to drop the case, saying he did not know.
Justice Mabuza was supposed to sit on the full bench along with Justice Jacobus Annandale and the new judge Sanji Mmsenono Monageng, from the Commonwealth. Justice Banda explained that other justices Mbutfo Mamba, Stanley Maphalala and himself could not be roped in since they heard part of the same matter.
In the notion of motion, the political parties and unions are seeking an order declaring the appointment of the members of the Elections and Boundaries Commission unlawful.
Their argument is that it is inconsistent with Section 90 of the Constitution as it is not multi-membered to other stakeholders in the electoral process.
The applicant’s further contention that the EBC as created by Section 90 of the constitution, was established with a view to be an institution to guarantee and support democracy through holding and conducting genuine, free and fair elections as provided by subsection 7 (1) (a).
They also add that there is nothing to suggest that the members of the Commission are independent.
The applicants further contend that the Chairperson, Chief Gija Dlamini, by virtue of the fact that he is a chief, should be disqualified from membership. His deputy Mzwandile Fakudze, the applicants argue, was a public officer serving as Deputy Attorney General of the country.
“Accordingly, his independence is questionable as he has been serving the government for a long time, and government is an interested party in the manner the elections will be conducted,” state the applicants.
The applicants are Swaziland Federation of Trade Unions, People’s United Democratic Movement, Ngwane National Liberatory Congress, Swaziland Federation of Labour, National Constitutional Assembly-Trust and the Swaziland National Association of Teachers.
Cited as respondents are Prime Minister Themba Dlamini, Justice and Constitutional Affairs Minister Prince David, Senate President Gelani Zwane, Parliament Speaker Prince Guduza, EBC and Judicial Service Commission, to mention but a few.
The applicants are represented by private attorneys Paul Shilubane and Thulani Maseko while Attorney General Majahenkhaba Dlamini and attorney Mndeni Vilakati are appearing for the respondents.
Notable activists present in court yesterday were Jan Sithole, Vincent Ncongwane, Mario Masuku and Ntombi Nkosi to mention but a few.
Also present was retired Principal Secretary in the Ministry of Enterprise and Employment Myekeni Vilakati.