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asked to elaborate on the test for setting aside an election result Mkomondze said the Swazi electoral laws were too outdated and open to manipulation.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.
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Friday, November 6, 2009
Sunday, June 15, 2008
SWAZI PARTIES IN COURT
Swazi Observer
16 May 2008
Lie on your own bed – AG
ATTORNEY General Majahenkhaba Dlamini said political parties and trade unions placed themselves in a situation in which they found themselves excluded from the process of making the country’s constitution.
The AG was addressing a Supreme Court full bench yesterday in a matter in which the political formations and unions (appellants) are challenging the constitution.
Dlamini said it was a position which the progressives took presumably on principle, rightly or wrongly.
He submitted that they submitted their right not to participate on the terms as provided.
“They exercised an option as they saw the situation,” he said.
The AG argued that in participating as required, the political parties/trade unions would not have been compelled to be anything other than their individual, natural or selves.
He told the Supreme Court that the appellants should not complain for having exercised what they considered to be an option open to them.
“It is not as if there was no other way, they had their cake; they ate it,” he contended.
The full bench comprised of Justices Tebbutt, Zietsman, Romodibedi, Ebrahim and Froscroft.
The progressives are National Constitutional Assembly-Trust, People’s United Democratic Movement, Ngwane National Liberatory Congress, Swaziland Federation of Trade Unions, Swaziland Federation of Labour and the Swaziland National Association of Teachers.
The respondents include Prime Minister Themba Dlamini, Justice and Constitutional Affairs Minister Prince David, Chairman of the Constitution Drafting Team, Senate President Gelani Zwane and Parliament Speaker Prince Guduza.
The AG said the Constitution Review Commission (CRC) and the Constitution Drafting Commission (CDC) did not flout any provision relevant to constitution-making process.
He submitted that there was no rule of law binding on CRC and CDC to ensure that the appellants were included in the constitution-making process.
“It was enough that the appellants in their individual capacity like everyone else-could take part in the process,” he submitted. The AG also submitted that the progressives cannot have a legal standing for the challenge they had launched, whatever may be the position in other countries.
He argued that there was no statutory basis for their claim.
“The claim cannot be based on the common law nor is it an inherent human right. And it should be remembered that Swaziland is a Kingdom, not a Republic, “ Dlamini contended.
“In general, the court has no power to review any part of the constitution. The reason for this must be obvious. The court is itself a creature of the constitution.
“Where the court may review the constitution, it would be most reluctant to declare any part of the constitution as void.
"Of the cases cited by the appellants, none is to the effect that the court can nullify an entire constitution in the normal course of that court’s function.
“Where constitution provisions seem to be in conflict, the court will do its best to harmonise the operation of those provisions.”
Judgement has been reserved.
Link http://www.observer.org.sz/main.php?id=43793§ion=main
16 May 2008
Lie on your own bed – AG
ATTORNEY General Majahenkhaba Dlamini said political parties and trade unions placed themselves in a situation in which they found themselves excluded from the process of making the country’s constitution.
The AG was addressing a Supreme Court full bench yesterday in a matter in which the political formations and unions (appellants) are challenging the constitution.
Dlamini said it was a position which the progressives took presumably on principle, rightly or wrongly.
He submitted that they submitted their right not to participate on the terms as provided.
“They exercised an option as they saw the situation,” he said.
The AG argued that in participating as required, the political parties/trade unions would not have been compelled to be anything other than their individual, natural or selves.
He told the Supreme Court that the appellants should not complain for having exercised what they considered to be an option open to them.
“It is not as if there was no other way, they had their cake; they ate it,” he contended.
The full bench comprised of Justices Tebbutt, Zietsman, Romodibedi, Ebrahim and Froscroft.
The progressives are National Constitutional Assembly-Trust, People’s United Democratic Movement, Ngwane National Liberatory Congress, Swaziland Federation of Trade Unions, Swaziland Federation of Labour and the Swaziland National Association of Teachers.
The respondents include Prime Minister Themba Dlamini, Justice and Constitutional Affairs Minister Prince David, Chairman of the Constitution Drafting Team, Senate President Gelani Zwane and Parliament Speaker Prince Guduza.
The AG said the Constitution Review Commission (CRC) and the Constitution Drafting Commission (CDC) did not flout any provision relevant to constitution-making process.
He submitted that there was no rule of law binding on CRC and CDC to ensure that the appellants were included in the constitution-making process.
“It was enough that the appellants in their individual capacity like everyone else-could take part in the process,” he submitted. The AG also submitted that the progressives cannot have a legal standing for the challenge they had launched, whatever may be the position in other countries.
He argued that there was no statutory basis for their claim.
“The claim cannot be based on the common law nor is it an inherent human right. And it should be remembered that Swaziland is a Kingdom, not a Republic, “ Dlamini contended.
“In general, the court has no power to review any part of the constitution. The reason for this must be obvious. The court is itself a creature of the constitution.
“Where the court may review the constitution, it would be most reluctant to declare any part of the constitution as void.
"Of the cases cited by the appellants, none is to the effect that the court can nullify an entire constitution in the normal course of that court’s function.
“Where constitution provisions seem to be in conflict, the court will do its best to harmonise the operation of those provisions.”
Judgement has been reserved.
Link http://www.observer.org.sz/main.php?id=43793§ion=main
Subscribe to:
Posts (Atom)