TESTING THE ELECTION LAW

Swazi Observer

6 November, 2009

Testing the test for election laws

THE litmus test for an election result to be declared null and void will be tested when the Supreme Court delivers a judgment on the last election dispute on November 27. In legal terms, the court can declare an election result null and void if the number of votes to be declared spoilt is enough to add up and give the election contender a majority stake.

In the case between election looser Thulisile Nyakura and the EBC and 41 others, such a test was said to be inapplicable for Swaziland.

Nyakura's (nee Simelane) lawyer, Mangaliso Nkomondze says Swazi courts should not be made to conform to South African courts where the elections are held under a different dispensation.

Nkomondze says his client lost the election for Eluhlangotsini Bucopho unfairly.

He argued that respondents four to 41 were not residents of Eluhlangotsini hence they should not have voted there. Though this is disputed by the EBC and the other lawyers representing the other respondents, Nkomondze says the Judges should consider the disparities in the elections held in Swaziland and those in South Africa. The matter was heard by Judge Ramodibedi, Judge Magid and Judge Ebrahim.

Judge Ramodibedi asked Nkomondze why his client was contesting the results of the elections yet she had lost with a huge margin of over 100 votes.

This was when Nkomondze said the election was not free and fair.

Then the court asked: "If your client had won the elections, would she still make the application because the elections were not free and fair?"

Nkomondze said even if the election was won by his client, she would still be challenged by those who would have lost it. "She is aggrieved about the EBC running the election in an irregular manner," he said.

When asked to elaborate on the test for setting aside an election result Mkomondze said the Swazi electoral laws were too outdated and open to manipulation. "The test has been imported from outside the country. The test cannot be applied here," he said.

ELECTION BOARD IS LEGAL - COURT

Times of Swaziland

27 March 2009

EBC wins, say Judges Agyemang, Maphalala

MBABANE—Parliamentarians can sleep easy knowing that the High Court has dismissed an application brought by the Swaziland Coalition of Concerned Civic Organisations (SCCCO) against the Elections and Boundaries Commission (EBC).

A High Court full bench consisting of Judges Stanley Maphalala, Qinisile Mabuza and Mabel Agyemang yesterday sat to give a final ruling on the urgent application brought by the Coalition to challenge the constitutionality of members of the EBC.

Judge Agyemang found that the points of law raised by the government were valid and must stand. She dismissed the Coalition’s application but ordered that each party pays its own costs.

However, Judge Agyemang found that the Coalition should win with regards to their fifth prayer, where they wanted the court to declare that the EBC and its members had no legal right or power to exclude or preclude persons or groups such as the Coalition from providing voter education to members of the public.

Judge Agyemang said they agreed that the Coalition’s application should be dismissed but said their reasons were not the same as those argued by the Attorney General.

She said because the Coalition was not a legal person, therefore the suit it had brought in its name must fail for lack of capacity.

"It is our view that the present suit cannot be maintained because same has been brought in the name and also on behalf of the Swaziland Coalition of Concerned Civic Organisation Trust, an organisation registered under Trust Deed as a charitable trust and which is thus not a citizen of the Kingdom of Swaziland as envisaged by the provisions of Section 2 (2) of the Constitution. We say this because it is our view that a ‘citizen’ as opposed to a ‘person’ must necessarily be a natural person who can enjoy and exercise civic groups and responsibilities such as exercising his franchise by voting, being entitled to hold a passport, amongst other things," reads Judge Agymang’s judgement in part.

She added that it was unfortunate that members of the Coalition had ceded their rights to challenge the EBC in their personal capacities but chose to use the Coalition, an organisation she said had no locus standi.

Judge Maphalala agreed with Judge Agyemang, leaving only Judge Mabuza to dissent on the merits of the matter. The judge said some of the allegations against the EBC contained in the Coalition’s founding affidavit were not factual. She said some of it were conjecture, while others were mere expressions of opinion.

Link http://www.times.co.sz/index.php?news=6607