Times of Swaziland
10 September 2008
Trusty Case: Court calls for ballots inspection
MBABANE – The Elections and Boundaries Commission has been ordered to avail ballot boxes under Mndobandoba Chiefdom before court for inspection this morning.
The order was issued by High Court Judge Mbutfo Mamba.
The boxes contain the disputed ballots where outgoing Deputy Speaker in the House of Assembly Trusty Gina’s victory is being challenged by four failed candidates in the primary elections.
Mndobandoba falls under Nkilongo constituency, where Gina was representing the electorate in the recently dissolved Parliament.
The bone of contention is an allegation by the applicants that there was no secrecy of the ballot at this polling station on elections day, saying the polling officers appended their voters’ codes on the ballot papers, which could have made it easy for anyone to point out who voted for who upon inspection at a later stage.
"The voter’s code is as good as your name. Where is the secrecy in appending the codes on the ballot papers?" enquired lawyer Professor Msibi who stood in for the litigants.
He said the election should have been conducted in the letter and spirit of the Elections Order, which advocates for secrecy of the ballot.
Msibi could not agree with the presiding officer’s view that the secrecy was maintained by the sealing of the boxes at the conclusion of the elections process.
"My Lord this should have been maintained even during the voting process," he said.
Unregistered voter allowed to vote
MBABANE – An unregistered voter was allegedly allowed to cast a vote during the process.
This allegation was raised by the litigants challenging the outgoing Deputy Speaker, Trusty Gina’s recent victory in the primary elections.
The crown, in defending the anomaly, said Hans Steffens Junior was allowed to vote on behalf of his ailing father because the latter could not make it to the polling station.
Steffens is a businessman of repute in and around the Big-Bend area.
However, attorney Professor Msibi said what happened was not in line with local electoral laws, in that the legal piece cited by the crown (section (35)) only allowed a situation where the Presiding Officer could cast a vote, albeit in secrecy on behalf of the handicapped person.
But legal counsel for the crown, Joseph Mahlinza, could not understand the point of calling for an election re-run just because of a lone faulty vote.
"The only possibility here could be to nullify the single vote or credit it to the applicant," he said, in a submission that threw the court in stitches.
‘Independent constitutional bodies compromised’
MBABANE – Legal practitioner Thulani Maseko has decried the continued ‘compromise’ of independent bodies created by the constitution.
His complaint arose from the crown’s insistence on citing the Attorney General in matters involving the EBC.
This was in a case where he represents Phumlani Dlamini and five others who are also disgruntled with the manner in which the elections were conducted under Ezulwini chiefdom.
"The EBC cannot be married with the Attorney General, who is also an ex-officio member of the Cabinet. That would amount to compromising its independence as an organ created by the constitution," he said.
To substantiate his submission he said the situation was also similar to that of the Judicial Service Commission where authorities have failed to give it its independent status conferred to it by the country’s constitutional text.
This has taken authorities more that five years yet the constitution was explicit about an only accepted lapse of a period of six months after its adoption.
The matter has attracted wide condemnation from the legal fraternity, which holds the belief that such is not consonant with the ‘Separation of Powers Principle’, which also guarantees that the rule of law is upheld.
1st – Phumlani Dlamini
2nd – Phineas Shongwe
3rd – Jabulani Dlamini
4th – Vivian Dlamini
5th – Sifiso Kunene
6th – Nyosana Dlamini
1st – The Elections and Boundaries Commission
2nd – Percy Mazibuko
4th – Elias Shabangu
5th – Wandile Mnisi
6th – Jabulani Dvuba