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

SWAZI KING ABOVE THE LAW

Times Sunday

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.

Link http://www.times.co.sz/News/1209.html

SWAZI ELECTIONS BOARD UNDER FIRE

Weekend Observer

30 August 2008

In God’s name GO!...SCCCO yells at the EBC

By Fanyana Mabuza

The Swaziland Coalition of Concerned Civic Organisation SCCCO has also slated the Elections and Boundaries Commission (EBC) about the shortcomings of the primary elections held last Saturday.

SCCCO has joined other civic organisations like CANGO, who have openly taken a swipe at the EBC over the way the primary elections were conducted.

Many people have written letters of complaint while others have delivered petitions to the commission, lamenting about the way the process was conducted, while also reporting anomalies they claim to have occurred at their respective polling stations.

In the statement, the SCCCO expressed its disappointment at what they termed ‘the latest election fiasco’ saying, going by the reports in the press, “there were many instances of poorly trained and ill-prepared officers following badly thought out instructions, guided by incompetent rules and overseen by people who are obviously completely out of their depths.”

The statement continued that the Coalition had taken its legal case on the unconstitutionality of the EBC on three main fronts, that it was not independent, was made up of public servants and that is does not have the relevant experience and demonstrable competence.

“Last week has demonstrated beyond any shadow of doubt that the experience and competence necessary to run an election is just not there.

“These botch-ups are not accidents, they are completely foreseeable, and a direct result of the incompetent, politically compromised, EBC being pressured to act too soon by outside forces. Why would any independent and competent authority allow the country less than a week for nominations and rush, completely unprepared into a primary election process?”

The statement continued that it had seen the EBC ignoring the 1992 Elections Order and allowing candidates to attempt to bribe voters with gifts.

“We have seen them act outside the Order to introduce the idea of a Voter’s Registration Card and to ignore many of the stipulations regarding the identity and for new rules to be introduced. Worst of all, we have seen a system of registration introduced that allows voters from other outside an inkhundla to be registered there. This leads to widespread, legalised abuses where a candidate can persuade, bribe, or bully voters to register in the candidates’ inkhundla whether or not they actually live there . This leads to the nonsensical situation of the candidates choosing the voters, not the other way around.”

The SCCCO stated that in light of the poor quality of their preparations, their utter disregard for the rights in the Constitution and their obvious lack of both independence and the appearance independence. The Coalition has previously called on the EBC to resign and it repeats that call now.

Under this system, and with these commissioners, elections cannot be free, fair or credible. In Gods name GO!

The Coalition then called for the normal people of Swaziland to support their case by reporting any example of election mismanagement, behaviour or administrative glitches to contact the SCCCO’s office in Manzini, and warned the people that their votes were being stolen from under their noses.

The SCCCO’s Musa Hlophe, when asked as to what motivated them to issue such a statement, explained that they were merely registering their observation of what happened, and which could be an indicator of what would happen in the next stage.

The EBC has over the week been inundated by people who were reporting their qualms over the recent primaries and today only, at least two groups of people from separate places presented petitions to the EBC secretariat at Nkhanini, where they were registering their dissatisfaction over the process or reporting anomalies they claim happened during the primaries.

They were from Mbhuleni at Matsapha and at the Mayaluka polling station under the Nkilongo Inkhundla. The Commission did concede that all did not go as planned last Saturday, but promised that amends had been done in almost all the places where election hiccups were experienced.

Efforts to get comment from the EBC on the SCCCO petition did not yield any fruit as the Information Officer, Sabelo Dlamini failed to return calls after attempts to reach him failed.

Link http://www.observer.org.sz/weekend/main.php?id=46581&section=mainweek

SWAZI ELECTION GOES TO HIGH COURT

Times of Swaziland

24 July 2008

Tum du Pont, others take EBC to court

MBABANE – The High Court has received yet another application challenging the existence of the Elections and Boundaries Commission (EBC).

The notice of motion was filed yesterday and government is yet to file its opposing papers.

In the latest litigation process, the Swaziland Coalition of Concerned Civic Organisations Trust (SCCCOT) wants the decisions and actions that have so far been purportedly taken by the Commission to be declared unlawful.

In essence, it follows that the recently concluded elections registration process should be nullified.

The SCCCOT comes from the school of thought which purports that the appointment of the commission was a flawed process, which consequently brings its composition in disrepute.

According to papers before the High court, "…the SCCCOT has a direct and material interest in the lawfulness of the operations and actions of the EBC, particularly where this is prejudicing or has the potential to prejudice the voter education activities of the Trust and its affiliates".

As a body with a primary objective to promote and protect democratic, civil and other human rights, the SCCCOT believes its mission is affected by the existence of an improperly constituted body; which has a mandate to oversee the smooth running of the forthcoming polls.

In the court papers, it is argued that the SCCCOT together with other groups of its calibre should have been included in the composition of the EBC.

Basically, the argument is that the EBC, as a body entrusted with managing elections, should have been drawn from a wide spectrum of the citizenry.

The organisation has engaged the services of attorneys from Mbabane prominent law firm, Robinson Bertram.

Link http://www.times.co.sz/News/117.html

SWAZI ELECTION BOARD 'UNLAWFUL'

Swazi Observer

24 July 2008

Another application against EBC

By Sabelo Mamba

THE Swaziland Coalition of Concerned Civil Organisations Trust yesterday filed a separate application at the High Court for an order declaring appointment of members of the Elections and Boundaries Commission (EBC) unlawful.

The organisation, which is being represented by Kenneth Motsa of Robinson Bertram law firm, is also seeking an order declaring that EBC is currently not constituted lawfully.

In the founding affidavit, Comfort Mabuza, who is the second applicant, says in light of the constitutional provisions and the important functions to be performed by the EBC, the requirement of genuine independence on the part of each of the members was of fundamental importance.

He says if that was not achieved, the objective of facilitating and supervising processes such as ensuring free and fair elections and facilitating voter education would be compromised.

"This would undermine public confidence in the democratic process of preparing for, holding and participating in elections," he contends.

"It is vital that public confidence is not thereby undermined for this could have dire consequences for democracy and peace in the Kingdom - as has been starkly demonstrated in recent months in both Kenya and Zimbabwe.

"In both countries such events as the lengthy delays in announcing election results undermined public confidence in their electoral commissions.

"Under the Swazi constitution, the requirement of independence in relation to the EBC entails both the independence of the various members of the EBC as well as the institutional independence of the EBC as a whole.

"Not only must they actually be independent but they must also be seen by the public to be so.

"This requires that both the EBC and its individual members are truly independent of the executive and legislative branches of government."

"This is confirmed by Section 90 (13) of the constitution, which requires that the EBC, in the exercise of its functions, will not be subject to the direction or control of any other person or authority."

Mabuza says the fact that the constitution permits judges to be appointed members of the EBC showed that the qualities required for an appointee to the commission include characteristic of independence expected of and manifested by judges.

Other trustees cited as applicants in the matter are Henry 'Tum' du Pont, Mandla Hlatshwayo, Jan Sithole and Musa Dlamini.

The EBC, its members Chief Gija Dlamini, Mzwandile Fakudze, Nkosingumenzi Dlamini, Gloria Mamba, Ncumbi Maziya, Judicial Service Commission, Attorney General, government and Minister of Justice and Constitutional Affairs Prince David are respondents.

Government has already been served with the application and is expected to file answering papers.

A similar matter that involves political formations and trade unions, which are also challenging constitutionality of the JSC and EBC, will proceed this morning.

The matter is pending before a full bench comprising Justices Stanley Maphalala, Jacobus Annandale and Mbutfo Mamba.

Link http://www.observer.org.sz/main.php?id=45590&Section=main&articledate=Thursday,%20January%201,%201970

MINISTER ACCUSED IN ELECTION MOVE

Swazi Observer

24 July 2008

Justice Minister accused of interfering with EBC

By Sabelo Mamba

THE Swaziland Coalition of Concerned Civic Organisations Trust accuses Minister of Justice and Constitutional Affairs Prince David of interfering with the independent functions of the Elections and Boundaries Commission.

Comfort Mabuza, who is the organisation's trustee, says the statement made by the minister to the effect that the EBC would only be permitted to deal with Tinkhundla boundaries after the elections in 2009 constitutes improper interference in the independent functioning of the EBC.

He says such conduct was in breach of Section 90 (13) of the constitution.

"It is particularly disturbing that the members of the EBC have, to the best of my knowledge, made no attempt to issue any public statement rejecting the assertion by the minister that they would not or should not undertake any review of the Tinkhundla boundaries before the end of the 2009 elections," he states.

"Nor have they done anything to disassociate themselves from the effort by the minister to subject them to the direction and control of the government.

"This reinforces the applicants' concern that the members of the EBC are not truly independent and cannot reasonably be perceived to be independent as required by Section 90 of the constitution."

Link http://www.observer.org.sz/main.php?id=45591&Section=main&articledate=Thursday,%20January%201,%201970