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asked to elaborate on the test for setting aside an election result Mkomondze said the Swazi electoral laws were too outdated and open to manipulation.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

EMPLOYMENT ROW OVER NEW MPs

Swazi Observer

14 October 2008

‘SUCH PEANUTS'

By Njabulo Dlamini

ELECTIONS under Mhlume Inkhundla might have to be held again after two winners threw doubts over their ability to serve as Indvuna Yenkhundla and Bucopho respectively.

The Indvuna Yenkhundla is Victor Mdakane and Bucopho is Pat Mokoena.

The MP, Siphiwe Kunene, who was employed as Section Manager has already assumed her Parliamentary duties and will leave the company.

MPs get approximately E26 000 a month.

Mokoena, who was Personel Officer at the RSSC is entitled to about E13 000 (including salary and all other perks and benefits) whilst Mdakane may get about E10 000, including basic salary and other perks.

If they assume the Indvuna and Bucopho jobs, they stand to get E2 000 and R3 000 respectively - a major departure from what they get at the RSSC.

Mokoena has chosen to remain with the company, whilst the Headman, Victor Mdakane is yet to decide.

They have been asked to either resign from their posts and pursue the new appointments.

The action by the RSSC is viewed by some as akin to unfair dismissal.

The feeling is that they should have been granted leave of absence instead of being asked to resign.

They have also been asked to vacate houses and surrender company property.

Correspondence titled 'Procedure for handling appointments to political office, public office or similar non-RSSC roles', is dated September 18, 2008, a day before secondary elections.

"It is intriguing why the company chose to release the document on the 18th; where were they all along?"some wondered.

The correspondence states: "Any employee who intends to engage or become involved in any external, non-RSSC, business interests is required to declare such interests by written application to the Managing Director as provided in Human Resources Procedure 1.3".

5.1 states that the offer of employment at RSSC is made and accepted on the basis of full-time employment in terms of which employees are expected to dedicate 100% of their time and energy towards meeting the goals and objectives of the corporation.

'Therefore, unless approved by the corporation in accordance with HR Procedure 1.3 (Avoidance of Conflict of Interest) employees shall not undertake any other job or appointment during the tenure of their employment'.

In 5.2 of the regulation is states that to become an MP, Indvuna YeNkhundla or Bucopho beNkhundla is deemed to be a full-time occupation.

'Any serving employee who assumes such appointment, cannot adequately perform the two functions of employee in RSSC and the other external business commitments at the same time'.

5.3 Any employee who elects to take up political office, public appointment or other external engagement will be required to resign his/her employment with the Corporation.

In 7.1.1 it says once the appointments have been made, the manager concerned will brief the employee about company policy as stated in these guidelines.

7.1.2 The employee will consider and should he/she elect to pursue the political/public career he/she will complete form HR 3.12.3 (Notice of Termination) formalising the decision to resign from the employ of the corporation.

The HR procedure is signed by General Manager Joe Shilubane and John Du-Plessis.

MP Kunene confirmed that the company wrote to them about the matter.

Human Resources Manager - Administration Dumsani Dlamini referred inquiries to the MD who was unavailable.

EBC comments

MEANWHILE, the Elections and Boundaries Commission (EBC) Chairman Chief Gija Dlamini said there was nothing much they could do about the developments.

"The only setback would be if the entire inkhundla team were to step down meaning fresh elections staged.

That would be a financial setback to us but there's nothing we could do to get to that.

"Otherwise each organisation has its own set of rules as seen with government which asked civil servants to either resign or proceed on a five-year leave.

Other organisations may opt to proceed on a different route as seen in this instance. It's beyond the EBC's grasp," Chief Gija said.

Otherwise, he noted, their hope was for an amicable settlement between the two parties.

Link http://www.observer.org.sz/main.php?id=47646&section=main

BREAD USED TO BUY VOTES

Times Sunday

12 October 2008

I gave MPs lots of bread—Mr Bread owner

By MAKHOSI MAGONGO

MBABANE— REVEALED: Mister Bread boss Wyne Levendale ‘assisted many’ MPs in their campaign for Parliament elections.

Some of the aspiring MPs were given loads of bread to buy votes, while other sponsorships from Mister Bread came in the form of cash prizes for soccer tournaments hosted by the campaigning nominees.

In return for the favour, they were supposed to elect him to be a senator once they were inside Parliament. But the plot did not go well, as Levendale lost to Tom Mndzebele, who made history by becoming the first visually impaired man to become a senator. Mndzebele got 44 votes while Levendale got 16 after a run off.

On Friday during the selection of senators, Mtsambama MP Bheki ‘No Problem’ Mkhonta nominated Levendale.

MP Mkhonta, a SUB Manager by occupation, yesterday acknowledged that Levendale assisted many MPs during the run down to the elections. He said he was not pleased that his nominee had lost, but was however happy that Mndzebele was eventually successful.

He further explained why he nominated Levendale. He listed several reasons why he wanted Levendale to become a senator.

"The first reason is that he is a Swazi who registered for the elections at Hhukwini area. Electing him would have made us a non-racist country. Our parliament should be balanced along racial lines, as much as we need to have people from the disabled Swazi community represented. I also believe that he has invested a lot of money in Swaziland and is committed to poverty alleviation in that his company employs over 300 people who have dependants.

"I also know for a fact that he assisted a lot of MPs while they were still campaigning for elections. The assistance came in many forms, including prizes for soccer tournaments organised by the MPs. There was free bread provided for the people, which is another way of alleviating poverty," he claimed, adding: "As for soccer, he has sponsored our 1st division league and many other community leagues."

MP Mkhonta said electing Levendale would have encouraged other investors who own businesses in the country. He said Levendale’s election would also be good for his constituency, Mtsambama.

Even though they are rivals in business, Mkhonta says he believes Levendale would have added value to the upper House.

"Nonetheless, I would like to congratulate Mndzebele who was the ultimate winner. I believe he represents a section of our society that has been marginalized over the years," he said.

Levendale said he was not bitter about the loss. "It’s fine, we can only try. At the end of the day, I am happy for the man who eventually won. I have no hard feelings," he said yesterday.

He confirmed that he assisted a lot of MPs when they were still campaigning. He, also, did not disclose any names.

He, however, said donating to impoverished rural areas was his company policy, though the donations were distributed via the then Parliament hopefuls.

He said his interest to become a senator was purely for the development of the country. "The difference between me and some of the people there is that I already have a well paying job, being a senator would have been purely a social responsibility. It was not a way of enriching myself. I wanted to participate in development because I believe Swaziland is a beautiful country that has a lot of potential," he said, adding: "However I believe there are many other people who are there purely for the development of the country, not to enrich themselves."

Chief Gija, the Chairman of the Elections and Boundaries Commission said he had been told that there was a case involving bread that is due to be heard in the high court. He was unsure whether it involved Mr Bread.

He further said donations should not be done with the expectation that there will be a favour returned.

"We have already warned against such donations. Giving is a blessed thing. However, when you give, you should not expect to be given a favour in return," he said. He said people elected into parliament were expected to be honest, and to desist from behaviour that is not in line with the law.

Link http://www.times.co.sz/index.php?news=2142

TOO FEW WOMEN IN PARLIAMENT

Times of Swaziland

8 October 2008

Disappointment as only two women appointed

By ARTHUR MORDAUNT

LOBAMBA – Yet again, acts of those in authority have been put on the spotlight regarding the implementation of the country’s constitution.

The latest involves the appointment of Members of Parliament to the House of Assembly by the king.

Constitutionally, His Majesty is supposed to appoint 10 MPs into the House to complement the 55 that are elected in the country’s constituencies.

Section 95 of the constitution states that the king, acting in his own discretion, after consulting with any bodies he may deem fit he will appoint not more than 10 members into the House.

Section 95 (2) (a) and (b) specifically states: "The nominated members of the House shall be appointed by the king so that at least half of them are female so as to represent interests, including marginalised groups, not already adequately represented in the House."

However, only two women were named in the list of the 10 appointees announced by Chairman of the Elections and Boundaries Commission (EBC) Chief Gija yesterday. These were Thulile Dladla and Princess Ncengencenge.

Interviewed, Chief Gija said theirs was only to announce the names as supplied by the appointing authority. Asked if there was any explanation given to them regarding the perceived anomaly, he said there was none.

"Presumably, we shall get an explanation in due course should there be any that is forthcoming," said the chairman.

The Co-ordinating Assembly of Non Governmental Organisations (CANGO) expressed its disappointment at the list.

CANGO Information Officer Bongiwe Zwane said they were expecting more since women did not fare well during the electoral process.

"We are hopeful though that there will be more women in Senate," said an optimistic Zwane.

CANGO was one of the organisations pushing the ‘Vote for a woman campaign.’

Constitutionally, the king is expected to appoint 20 Senators, eight of whom are supposed to be female. About 10 more will be nominated by members of the House of Assembly. Half of these should be female.

Link http://www.times.co.sz/index.php?news=2045

REPORT 'PARTYING' MPS

Times of Swaziland

8 October 2008

Report partying MPs to the police, says AG

By WELCOME DLAMINI

MBABANE – Attorney General Majahenkhaba Dlamini has called upon citizens to report to the police any legislator they find throwing a party.

Dlamini said this would help bring the Members of Parliament before the law to answer on allegations of treating.

The AG said it was only the country’s courts that would help interpret the law, with regards to treating, to determine whether the legislators broke any rule or not in as far as the 1992 Elections Order is concerned.

"It is very difficult for one to draw the line between a party and a genuine thanksgiving ceremony, so we need the courts to interpret where we are supposed to draw the line regarding this issue," the AG said.

Dlamini said in the case of Lobamba Lomdzala MP Marwick Khumalo who threw a party on Sunday in celebrating his elections victory, anyone who witnessed the event and feels it was wrong should just go to the nearest police station to report the matter.

"We need such things to be on record so that they could be easily dealt with and if no one reports them then we have no guidance in the matter because there has to be a complainant first," the AG said.

Dlamini said people should not be afraid to come forward to register their concerns but they should also be wary that their hands are not dirty.

Dlamini said this in reference to section 63 (2) of the 1992 Elections Order which makes it an offence for voters themselves to partake in festivities hosted by legislators.

"Both the legislators and voters should not be party to any corrupt practice so the person who reports any wrongdoer should also have clean hands," the AG said.

Dlamini said such issues needed to be treated with caution because one person could be reporting someone to the police out of blatant harassment.

"People have their own grudges so we have to watch out for such people before we could take any action," the AG stated.

I broke no law by throwing party - Marwick

MBABANE – MP Marwick Khumalo has said there was no law he broke by throwing a party on Sunday.

The legislator said in all his years as a parliamentarian, he had been throwing parties of this nature as a form of thanksgiving.

"All other parliament-arians throw parties after an election to celebrate their victory and I see no problem with this as it is a way of saying thank you to the people," Khumalo said.

Khumalo said his party was a thanksgiving as he had invited priests who provided the day’s prayers to show that indeed this was a genuine thanks-giving ceremony.

The MP mentioned that his other colleagues would be throwing similar parties this coming weekend and he has been invited to attend them as he had also invited them to his.

Khumalo said the law only prohibited the throwing of parties on the actual day of the election but not after then.

"Maybe we should get a legal person who is going to give us a proper interpretation of the law so as to avoid any confusion," Khumalo said.

... guilty ones could be jailed for one year

MBABANE – Parliamentarians who throw parties could face a year in jail for throwing an illegal party for voters.

According to the country’s election laws, this is termed ‘treating’ and also carries a fine of two thousand Emalangeni upon conviction.

There have been concerns raised over Marwick Khumalo’s recent thanks giving party.

He slaughtered three cows for over 1000 people of his constituency in a thanksgiving ceremony held at Mpop- homa.

When contacted on the matter, chairman of the Elections and Boundaries Commission (EBC) Chief Gija Dlamini said there was nothing they could do regarding Khumalo’s party.

"As far as we are concerned, elections have come and gone, there is nothing that we could do," Chief Gija said.

The chief referred this newspaper to the office of the Attorney General where he said advice on the matter could be sought.

"The AG’s office is the one that could be of assistance as we also rely on them for guidance, especially on legal matters," Gija said.