Times of Swaziland
16 September 2008
EBC must be independent!
By Mbho Shongwe
Is it benefiting the elections proc-ess when the Elections and Boundaries Commission (EBC), faced by problems always, tries to hide be hind the name of the king?
The elections should be about the people and not the king.
What does the constitution say about the EBC? Clause 90(1) says, "There shall be an independent authority styled the Elections and Boundaries Commission ...". Where is the independence when EBC keeps on dragging the name of the king any time they come out with problems in its operations? Clause 90(2) says "The members of the commission shall be appointed by the king on the advice of the Judicial Service Commission". Is the composition of EBC the product of the Judicial Service Commission (JSC), itself not constitutionally constituted? Any person still in doubt must read clause 159(2) of the constitution and further refer to Industrial Court judgements.
Why is the Law Society of Swaziland mum about this irregularity? Where are the learned friends of this noble profession hiding, because the ball is in their court? Let us look at the quality of the EBC.
Clause 90(6) says "The Chairperson, Deputy Chairperson and the other members of the commission shall possess the qualification of a Judge of the Superior Courts or be person of high moral character, proven integrity, relevant experience and demonstrate competence in the conduct of public affairs". This is a pregnant sentence indeed, but shows that the person should not be holding a public office at the time of appointment as stated in clause 90(3c).
The previous position(s) of this person must speak volumes of his/her reputability beyond disputes. What is the significance and importance of the sequence of the sentence in clause 90(6) ? What would have happened if it started with "The person ... or the qualifications of a Judge" ? How does one acquire high moral character and have proven integrity and relevant experience without a qualification ? These items can only be obtained by first having a qualification. Relevance here refers to elections and boundaries issues.
The power and quality referred to in clause 90(6) "Shall possess the qualifications of a Judge ..." shows that these individuals would be people who may be trained as attorneys or advocates or some legal training. It must be understood that it is not all people who qualify to be judges are also reputable. Therefore, the constitution should have mentioned the other qualifications to avoid linking the rest of the sentence to the qualification of a judge. The constitution is never meant to confuse the nation, but help clear any doubt.
Clause 90(7) tabulates the functions of the EBC. Of interest is clause 90(7a) which says "Oversee and supervise the registration of voters and ensure free and fair elections at primary, secondary or other level".
The registration process and primary elections cannot be said to have gone well, hence were never free and fair. Clause 90(7b) says "Facilitate civil or voter education as may be necessary in between elections".
Clause 90(13) says "In the exercise of its functions under this constitution, the commission shall not be subject to the direction or control of any other person or authority".
On numerous occasions, EBC has shown that it depends on instructions and powers from some authority, hence no regard with the constitutional power bestowed on it by the constitution. Then, can it be said that EBC is capable to prepare and run a free and fair elections? The challenges that are before the High Court are speaking volumes of the mess created by stupid ill preparedness on the side of EBC. In addition, the rumour that EBC should move from the Ministry of Justice and Constitutional Affairs to the King’s Office is creating another problem and confusion, thus putting pressure into the door of the king.
Besides, clause 90(14) says "There shall be a secretariat of the commission provided by the ministry responsible for elections". Or is this true that the constitution only works on paper and have no effect and force in the operations, especially of the EBC? Furthermore, what could be said of the Estimates for the years from April 1, 2008 to March 31 2011 which depicts the unknown role of EBC?
EBC is appearing under Head 44 which says "To promote public confidence in the conduct and management of the electoral processes" and "Administration of constitutional affairs and running of national elections". This Head has two activities, 11 Elections and Boundaries Commisson and 12 Constitutional Affairs. According to this arrangement, EBC is in charge of the Commission and the Constitutional Affairs - the constitution. This is further compounded by the confusion in the EBC operations.
Is it the question of having the cake and eating it? However, the elections are drawing near the close and have many interesting things, worthy noting.
Those elected are supposed to represent their physical area and community. One will soon learn that some of the elected, in fact, do not represent the above but themselves and their interests.
The problem originated from the registration process where there was no water tight procedure. The local runners tried their best but had limitations and shortcomings. The protection of the registration books could not be checked at the start and end of the day’s registration, hence many things could happen after work.
There was no verification of the registration process. Some of the would be candidates used this window to register voters who did not belong and or reside in the community. Another way was the registration in other communities and requesting for transfer and the checking there had a layer of grey areas, thus having a number of voters who are, in fact, not belonging and or residing in the community. Some of these wrong registrations started in the local government elections conducted in 2007 and now has spread to the national elections. There are those who claim belonging to the community by showing graves of their grand-grand parents, dwelling ruins, khontaed, pitched up mobile zozos, tents, you name it for the purposes of the elections. One should not be surprised this time around to find the elected Bucopho, Tindvuna Tetinkhundla and members of parliament who do not belong and reside in these Tinkhundla they represent.
What could be said of those who reside in that community due to employment conditions? What happens when he/she is transfered or fired yet was elected into these positions? It must be understood that Bucopho is a springboard of development initiatives of the community. An initiator, stimulator and visionary of development goals. In addition, Bucopho is a team builder who is always with the community, thus establishing sub committees to address special needs of the community. However, some would be candidates were rejected at the nomination because did not have and or produce the relevant papers. Others were accepted eventhough did not have the necessary documentation.
There are those who did not reveal that there were employed by government, parastatal or an organisation subvented from the Consolidated Funds. Others simply registered by using different names and that they were running business. By the way, how many civil servants and teachers employed by government are running businesses? What does the constitution say about people working for government concerning running for the national elections ? This unfortunately is only referring to the disqualifications for members of parliament. Clause 97(1c) of the constitution, says ‘Is a member of the armed forces of Swaziland or is holding or acting in any public office and has not been granted leave of absence for the duration of Parliament’. This means that these people cannot be nominated for Member of Parliament unless they have been granted the said leave of absence.
Who grants them this leave, supervisor or employer? The constitution has failed to clarify this and one can depend on Common Law, thus suggesting that issues and condititions of employment are handled by the employer. In our case in Swaziland, teachers are employed by the Teaching Service Commission (TSC) and civil servants and some public officers are employed by the Civil Service Commission (CSC).
Other public officers are found in parastatals and or government owned companies, agents or where it has shares. Clause 97(1g) says "Is a party to, or is a partner in, a firm or a director or manager, of a company which is a party to any subsisting govrnment contract and has not made the required disclosure of", the contract, interest of person and company.
These people must also have the tax clearance from the Commissioner of Taxes. Any person still in doubt about the meaning of public office must read clause 254 of the constitution together with the Interpretation clause 261 ‘public office’, ‘public officer’ and ‘public service’.
Some of those still in the race were illegally nominated because did not have the necessary documentation, these include the cabinet ministers. By the way, soldiers, police officers, cabinet ministers, bishops, pastors, reverands, students, Tinyanga, Babholofindi, etc got nominated this time around.
What will happen to those granted leave, but did not make it in the nomination and primary elections? What about those who will fail to make it in the secondary elections? Let us all wait for the genuineness of the granted leave of absence for five years. Swaziland is heading for interesting and traumatic times.