24 July 2008
Another application against EBC
By Sabelo Mamba
THE Swaziland Coalition of Concerned Civil Organisations Trust yesterday filed a separate application at the High Court for an order declaring appointment of members of the Elections and Boundaries Commission (EBC) unlawful.
The organisation, which is being represented by Kenneth Motsa of Robinson Bertram law firm, is also seeking an order declaring that EBC is currently not constituted lawfully.
In the founding affidavit, Comfort Mabuza, who is the second applicant, says in light of the constitutional provisions and the important functions to be performed by the EBC, the requirement of genuine independence on the part of each of the members was of fundamental importance.
He says if that was not achieved, the objective of facilitating and supervising processes such as ensuring free and fair elections and facilitating voter education would be compromised.
"This would undermine public confidence in the democratic process of preparing for, holding and participating in elections," he contends.
"It is vital that public confidence is not thereby undermined for this could have dire consequences for democracy and peace in the Kingdom - as has been starkly demonstrated in recent months in both Kenya and Zimbabwe.
"In both countries such events as the lengthy delays in announcing election results undermined public confidence in their electoral commissions.
"Under the Swazi constitution, the requirement of independence in relation to the EBC entails both the independence of the various members of the EBC as well as the institutional independence of the EBC as a whole.
"Not only must they actually be independent but they must also be seen by the public to be so.
"This requires that both the EBC and its individual members are truly independent of the executive and legislative branches of government."
"This is confirmed by Section 90 (13) of the constitution, which requires that the EBC, in the exercise of its functions, will not be subject to the direction or control of any other person or authority."
Mabuza says the fact that the constitution permits judges to be appointed members of the EBC showed that the qualities required for an appointee to the commission include characteristic of independence expected of and manifested by judges.
Other trustees cited as applicants in the matter are Henry 'Tum' du Pont, Mandla Hlatshwayo, Jan Sithole and Musa Dlamini.
The EBC, its members Chief Gija Dlamini, Mzwandile Fakudze, Nkosingumenzi Dlamini, Gloria Mamba, Ncumbi Maziya, Judicial Service Commission, Attorney General, government and Minister of Justice and Constitutional Affairs Prince David are respondents.
Government has already been served with the application and is expected to file answering papers.
A similar matter that involves political formations and trade unions, which are also challenging constitutionality of the JSC and EBC, will proceed this morning.
The matter is pending before a full bench comprising Justices Stanley Maphalala, Jacobus Annandale and Mbutfo Mamba.