7 September 2008
EBC can’t be challenged in court
By MANQOBA NXUMALO
MBABANE — Government has told the court that the Swaziland Coalition of Concerned Civic Organisations (SCCCO) cannot take the Elections and Boundaries Commission (EBC) to court because doing so would be tantamount to challenging the authority of the king.
This is contained in opposing affidavits filed by the government where the Coalition is challenging the appointment of all the members of the EBC from amongst other prayers.
Members of the EBC include Chairman Chief Gija Dlamini, Deputy Chairman Mzwandile Fakudze, Nkosimenzi Dlamini, Gloria Mamba and Ncumbi Maziya. The Coalition is also not happy that the EBC preludes other entities from providing civic education and that some chiefs are usurping the powers of the EBC by teaching about the elections.
Government is opposing the application and has indicated that when the matter comes to court they will raise points of law against the Coalition’s application.
One of the points that government will raise is that the appointment of the EBC is justiciable as a matter of policy and by the operation of Section 11 of the constitution. Section 11 of the Constitution states that the king and Ingwenyama shall be immune from any suit or legal process in any cause in respect of all things done or omitted to be done by him and being summoned to appear as a witness in any civic or criminal proceeding.
Government says apart from these points of law, it will raise arguments that Coalition has no locus standi (right to appear in court), lack appropriate interest, suffered no prejudice, their charitable trust is not valid and lack separate independent trustees, lack identifiable beneficiary capable of enforcing performance, lack charitable object as well as vagueness.
The immunity of the king to court proceedings is also worrying Anti-Corruption Commissioner H Mtegha, a retired judge from Malawi. He was quoted by the British Daily Telegraph saying he was not optimistic: "If we go after someone high up and he says the king told me to do this, what can I do? To be satisfied, I’d have to ask the king himself, and this cannot be done. The king is immune."
The Coalition is not happy about the manner the EBC is conducting the elections. On September 19, 2008 the country will stage the secondary elections which will then see the next government put in place.
However, as days draw near to the elections no word has come on international observers for the elections.