24 September 2008
Bareless allegations against EBC
By Sabelo Mamba
HIGH Court Judge Mbutfo Mamba said it was insufficient for political parties/unions to merely allege that the Elections and Boundaries Commission (EBC) is not independent because they have no evidence to the contrary.
Judge Mamba said the contention by the political parties was that there was no evidence to show that EBC is independent.
He observed that this was a conclusion and the facts upon which it was based were not stated.
"This is equivalent to saying the Commission is not independent because it is not independent. It does not say much, does it?” remarked the judge.
The judge was handing down his own verdict of a High Court full bench matter in which the political parties/unions were seeking an order declaring the appointment of the members of the EBC unlawful.
They further sought an order declaring the composition of the Judicial Service Commission (JSC) unconstitutional.
Judge Mamba was sitting with Justice Stanley Maphalala and Justice Jacobus Annandale.
The applicants are Peoples United Democratic Movement, Ngwane National Liberatory Congress, Swaziland Federation of Trade Unions, Swaziland Federation of Labour and the Swaziland National Association of Teachers.
Cited as respondents are Prime Minister, Minister of Justice and Constitutional Affairs, Attorney General, Chairman of the Constitution Drafting Committee, Parliament Speaker and Senate President.
Justice Mamba said the rest of the attack was on the individual members of the EBC and relates to the individual qualification.
The judge said there was no requirement anywhere in the constitution that the EBC must as a matter of law, comprise members of all different societal groupings in the country; including those not aligned to any recognised grouping.
"The contention that the independence of the commission can only be guaranteed if the membership of the commission comprises the multiple political and non-political formations in the country, is in my view erroneous," he said.
"To seek a declaratory order of unconstitutionality on the basis that the JSC is not independent, contrary to the law, without laying out why, how or in what respects it is said it is unconstitutional, is in my respectful view, meaningless."
He said it was not necessary for him to consider the further objection relating to whether or not the EBC and JSC have the necessary locus standi (legal authority) to sue and be sued.
Attorney General Majahenkhaba Dlamini assisted by Mndeni Vilakati were appearing for the respondents.
Political parties were represented by Thulani Maseko and Paul Shilubane.