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.
Members of Parliament are today expected to elect a Speaker of the House and elect 10 members to serve as senators. A new system has been adopted where each member will have an opportunity to not only submit a candidate’s name, but also have time to motivate the submission.
To expect that this new system could bring about a better selection from the parliamentarians is only wishful thinking.
opportunity
It provides a good opportunity though for us to identify the people who support those we know to have pumped in lots of money for a Speaker and Senate seat.
People have been paid, very well, to get desperate wanna-be-politicians into parliament as demonstrated by the shooting down of MP Nonhlanhla Dlamini when she suggested they look at beefing up the House with professionals who had expertise in fields that were not represented in the House.
She rightly observed the shortage of the legal fraternity yet their job had a lot to do with formulating legislation.
Some MPs also questioned why they, and not the king, had to balance the gender scales because they had a lot of males to bring to parliament; well paying males no doubt.
unhelpful
While the Attorney General was unhelpful with regards to whether they could nominate people who lost in the primary or secondary stages, we would not hesitate to say yes, but not former ministers who have a proven track record of failure.
There are many capable MPs who were robbed by bribing ambitious politicians and therefore careful consideration of the names raised must be made.
As for those who came begging for a job when MPs gathered for a workshop yesterday, well, what can we say; that’s how cheap a parliament seat has become.
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.
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.
What can be said of the country’s 2008 general elections in terms of the Rules and Regulations as adopted by the Southern African Development Community (SADC) and African Union (AU) ? The chairman of the Zimbabwean Elections Commission (ZEC) was here to observe the secondary elections on September 19, 2008.
One wonders what he learnt from the Elections and Boundaries Commission (EBC) and the elections process. Swazis must not be fooled by the Draft Observer Mission statement and some declarations that the elections were free and fair. In fact, this statement is now misused to say there was no violence. At the same time, these observers are aware that they are in the country courtesy of the ruling elite, hence careful what they release, while still in the conutry.
Therefore, Swazis must read the observer mission statement not drafts. Then, to declare elections free and fair, one must know many issues and processes, including registration, campaigning, polling conditions/stations, voting times, polling officers, campaigning, polling stationery/security, atmosphere, counting of votes, etc. It must be noted that on September 19, five (5) Tinkhundla centres did not vote because of the Court judgement. In fact, more than 10 areas had challenged the nominations and primary elections citing irregularities. Although the constitution came into operation in July, 2005, the EBC was only appointed early in 2008 to prepare and run the elections the same year.
Why the authourities waited that long to act on the appointment of EBC, God knows. The EBC was ill-prepared to run the elections, hence the so many problems and court hearings connected with the elections. The legality of the EBC is questionable to date. The registration was reported to be in excess of 350 000 and those who cast their votes for the eventual winners, the MPs, are about 80 000, indicating that it will be less that 100 000 when all Tinkhundla centres have cast their votes. It was reported that in some areas, people registered more than once, under 18 years registered and wrong people registered. Were the observers aware of these anomalies? What was the role of poverty in the voting by the electorate?
Trauma
It appears the campaigning was based on the politics of the stomach and not on the ideology and philosophy of governance. The would-be voters were literally given money, groceries and foodstuff, promised Heaven and Earth for voting that individual candidate. Many candidates, if not all, used these unorthodox ways of campaigning. Some of these candidates used these wrong campaigning ways due to ignorance of the law governing the running of elections. There are those who spent more than their initial budgets because they thought these were the right approaches of campaigning. The trauma and suffering caused by this to these candidates are a result of an ineffective EBC. Both the Attorney General’s office and EBC did not reprimand the wrong doers or protect these poverty stricken voters. It is surprising that both offices are now shedding crocodile tears about the illegal campaigning. How can they retrack the wrong created at campaigning and eventually doing something to the winning candidates? These problems will be with the 9th Parliament and hope that EBC and Attorney General Offices will in future be proactive, thus discouraging the wrong being done from the very beginning. The reputation of the 9th Parliament has been put to test by the so many bribing for votes, as reported. Does this pressure of wanting to be a Member of Parliament calling for killing people and or sacrificing so much?
Both the Elections Order 1992 and the Constitution 2005 are against these ways of campaigning for a political office. What is the main purpose of being a Member of Parliament, legislation or employment? So much has been said about voting people to go to Parliament to form our government. At least, this is, what the Swazis are told by those who care or employed to encourage other Swazis to register and vote or being voted for. Others used the television and radio talkshows supported by EBC, all preaching the gospel of voting to form our government. In other words, to usher in the people’s government. Interestingly, when does this government formed by our elected MPs become the king’s government?
Is it when climbing up Malangwane or going down this hill? Why don’t we mention this from the very beginning that the elections are about helping the king form his government? In fact, I have never seen any document talking about the government of the people of Swaziland. Therefore, the talk- shows and slogans have been misleading and painting a false picture about our elected MPs.
However, in order for elections to be observed there are certain laws that must be in place. These are the Rules, Regulations and Principles which are supported by the constitution itself within the framework, in our case, of SADC and AU Rules, Regulations and Principles. The constitution of the country must have the Bill of Rights, thus allowing Freedom of Association, including political association and activities. Therefore, elections by their nature are contested by both individuals and associations. In Swaziland, this is restricted to individuals only (Clause 79 of the Constitution) and thus limiting the said Freedom of Association as enshrined in the constitution. Furthermore, at the appointment of the EBC, the Judicial Service Commission (JSC) was not constitutionally constituted. JSC is responsible for advice to the appointment of EBC. The composition of EBC, is not constitutional constituted. Even though, EBC had this axe hanging over its head, continued to conduct the 2008 general elections. This also shows that the elections, were run under unconjusive conditions and observers’ deliberately ignored this.
Wrongs
On the elections date, I privately observed four Tinkhundlas. Before this, it must be noted that the voter registration had numerous problems; children below 18 registered, duplicate and multi registration by certain individuals, registering where people do not reside, etc. Nomination carried without checked voters roll, others nominated even though still public officers, voter cards at times never checked, etc. Primary elections faced by many problems and candidates went to Court for some of the problems.
Returning, presiding and polling officers were not properly trained for conducting the elections, hence the so many wrongs in the elections process. Five Tinkhundla secondary elections were not run on September 19, 2008 because of court rulings. All these happenings are suggesting that the elections fell short of being called free and fair. On the polling date, I went to two Tinkhundla centers from the rural and two urban areas. The conduct of the polling; one opened at 7:50am instead of 7am, pictures of the voters in the voters roll not clear, no signs leading to polling room, one still displayed campaign pictures of candidates outside the gate, some polling officers seem not sure of their duties, no uniformity of operations, etc. The polling atmosphere; presence of police officers was adequate not intimidating, some still asked would be voters to vote for their choice in the lines or towards the polling room, other polling stations did not have adequate lights or lighting system, etc. Participating at polls; only saw one with long lines in the rural areas, government provided some transport, some candidates transported would be their supporters with the pictures on these vehicles, etc. Generally, there were no disturbing incidencies in the polling stations, I visited. Because of the absence of many items in the elections, it is very difficult to say that they were free and fair according to known principles of running elections in a modern society, of which mother Swaziland claims to be one. While still waiting for the full tabulation of the elections, one can conclude that many people showed up in the primary elections and shunned the secondary ones. What could have been the reasons for this trend?
This would probably be a challenge to EBC and the authorities of the country that something must be done to enhance the purpose and Rationale of conducting the elections. Now that the elections campaigns have been contaminated by non-Tinkhundla philosophy - ‘vote for me’, thus suppressing Tinkhundla’s ‘quiet campaign’, what is left of its value? Has money become the only tool to make one win the elections? If so, how will the 69 percent of our society ever be MPs?
This practice needs to be arrested in order to avoid untold stories. In a multi party system, campaign funds are controlled and monitored. If the Tinkhundla operation is not careful, it will soon create classes of voters and candidates. Because the candidates will be associated with lots of money to provide to the voters all sorts of handouts, including free groceries, foodstuff, alcohol, T-shirts, hard cash, plots, building houses, cars, etc. It must be noted that this society has been schooled into believing in handouts by the state and uncontrolled fund-raising is the way of getting money, even from the very poor ones. Tinkhundla operation will continue to have problems because it fails to provide benchmarks of whatever it wants to do or propose to implement. Anyway, my congratulations to those who lost or won but did not engage the unorthodox ways of campaigning. It takes one or two to set the record straight. Your action will not go unnoticed.
