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asked to elaborate on the test for setting aside an election result Mkomondze said the Swazi electoral laws were too outdated and open to manipulation.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.