LAW AND CONSTITUTION CLASH

Times of Swaziland

27 May 2008

Elections crisis looms as laws clash with constitution

BY INNOCENT MAPHALALA

MBABANE - The 20O8 general election proc­ess has been set in mo­tion based on 1992 laws, which clash with the national constitu­tion on certain aspects.

The Elections and Boundaries Commission (EBC) confirmed yesterday that it was going about its duties on the basis of the 1992 legislation.

Laws relevant to the elections process in Swaziland are the Elec­tions Order, the Establishment of Parliament Order and the Vot­er's Registration Order - all en acted 14 years ago.

Justice Minister Prince David tabled bills that were to amend these laws in Parliament a few weeks ago but later withdrew them.

This left the EBC with no option to continue using the 1992 laws which are still in operation without any amendments.

The amendments were necessary to bring: the laws into conformity with the constitution.

The constitution makes it possible for the election of up to 76 members of the House of Assem­bly. The Establishment of Parliament Order only allows for 66. Section 16 of this law says the House of Assembly shall consist of as many members as there are Tinkhundla (constituencies), 10 members appointed by the king and the Attorney General as an ex-officio member. There are currently 55 gazetted Tinkhundla.

The constitution says a person is qualified to be registered as a voter if he or she has attained the age of 18 and is a citizen or is ordi­narily resident in Swaziland. Be­ing 'ordinarily resident' in Swaziland refers to cases where that person has lived in or has been associated with a particular con­stituency for a period of not less than fives years or is permanently resident in Swaziland and has rel­evant documents to that effect.

The Voter's Registration Order, on the other hand, says no person shall be registered in any Inkhundla unless he or she has actually re­sided in that Inkhundla for a con­tinuous period of at least three months before registering. If that person has not resided within the Inkhundla, he should have retained his home there for at least three months.

The constitution says all as­pects of the elections will be under the direct control of the Elections and Boundaries Commission. The 1992 law being used by the same commission still gives all power to the Chief Electoral Officer, known locally as Umphatsi Lukhetfo. This position no longer exists, as it became obsolete after the ap­pointment of the EBC about three months ago.

The constitution disqualifies people who are in arrears with their taxes (personal or business) from running for office as Members of Parliament (MPs). Section 96 (c) of the supreme law says a person qualifies to be appointed, elected or nominated as a senator or mem­ber of the House of Assembly if that person "has paid all taxes or made arrangements satisfactory to the Commissioner of Taxes.

The law currently in use (Es­tablishment of Parliament Or­der, 1992) does not have that provision. It only lists three qualifications, namely being or­dinarily a resident in Swaziland, qualified for registration as a voter and having registered in any Inkhundla.

These are not the only possi­ble clashes between the consti­tution, which came to force in 2005 and the laws that were to be amended.

Chief Gija Dlamini, Chairman of the EBC, said his office was not aware of the reasons that led to the withdrawal of bills that were to amend the 1992 laws.

"We are therefore using the 1992 election laws," he said.

Currently, the EBC is moni­toring and supervising the regis­tration process.

The voter registration process will run until June 22, after which, Parliament may be dis­solved at any time.