No legal action has been taken against candidates at Swaziland’s national election who are alleged to have engaged in corrupt practices.
Last week the Elections and Boundaries Commission (EBC) reported on a host of irregularities during the 2008 election, ranging from intimidation to bribery.
But it has emerged that even though the EBC had information about the identities of the accused, it did not contact the Swazi police or the Anti-Corruption Commission (ACC).
The controversial EBC chair Chief Gija Dlamini refused to discuss the matter with the Times Sunday,an independent newspaper in Swaziland, claiming that he couldn’t do so until the report had been discussed by parliament.
In typical fashion, Chief Gija, who was widely criticised for his lack of experience when he was appointed to the EBC chair (he is an electrician, not a judge), did not say why he had to wait until parliament deliberated.
If information that a crime has been committed is available it should be passed on to the ACC and the police for action to be taken.
Because of the chief’s complacency the guilty may be walking free.
The next time Swaziland government ministers tell us that democracy is alive and well in the kingdom and the present government was chosen as the will of the people, refer them to the report on corruption at the 2008 elections, just published.
The report from Swaziland’s Elections and Boundaries Commission (EBC), details allegations of widespread bribery, ‘treating’, threats of violence and cases of candidates unlawfully holding voter cards.
The 2008 elections were controversial because, despite reservations from many international observers, the ruling regime in Swaziland, which is ruled by King Mswati III, sub-Saharan Africa’s last absolute monarch, claims the elections were free and fair: even though all political parties are banned in Swaziland.
The ECB report highlights treating, bribery, undue influence and unlawful possession of voter cards by candidates as key issues of corruption at the elections.
According to the Times of Swaziland,the kingdom's only independent daily newspaper, ‘treating was characterised as, “entertaining voters for the purpose of influencing their decision.”
‘This described the cases in which candidates gave food, money and drinks to the electorate.
‘Under bribery, candidates are said to have made voters, “offers of money, favours, lucrative promises, gifts, loans.”
‘It is also alleged that some candidates used undue influence on potential voters by, “threatening, using force and violence”.
The EBC now wants an independent body to be established to resolve electoral disputes, irregularities and malpractices.
Since the 2008 election there have been numerous cases of malpractice heard by the Swazi courts, including people posing as polling officers when they were actually not, alleged bribery of voters and polling officers being biased.
The report states that six election cases are pending. ‘Certain people acted as polling officers yet they were not legally entitled to do so; some polling officers were not neutral at the polling stations and were advocating for particular candidates to be voted for; and it was alleged that some voters who did not belong to the affected polling station were registered and illegally allowed to vote,’ the report states.
At last the Swazi High Court action to demonstrate that the Swaziland Elections and Boundaries Commission (EBC) is unconstitutional has started.
And if today’s newspaper accounts are anything to go by we can see that the defenders of the EBC are going to use misinformation to try to make their case.
One of the main matters in dispute is that the members appointed by King Mswati III to the EBC board are not qualified to do the job.
I hope that Swaziland’s journalists will see through the rhetoric and simply concentrate on the facts of the matter.
According to the Swazi Observer today (13 November 2008) the Swazi Attorney General Majahenkhaba Dlamini told the High Court that there was nothing wrong with the qualifications of the board members. The chair, Chief Gija Dlamini is variously described in public as an electrician or an electrical engineer.
The Observer reported that Majahenkhaba Dlamini said Section 90 (6) of the constitution does not require that a member of the EBC should have the qualification of a judge of a superior court.
‘Under that subsection members of the EBC could all have no qualification of a superior court judge,’ he said.
What the attorney general says is not strictly true. What S90 (6) says in full is as follows: The chairperson, deputy chairperson, and other members of the Commission shall possess the qualifications of a Judge of the superior courts or be persons of high moral character, proven integrity, relevant experience and demonstrable competence in the conduct of public affairs.’
The letter of the constitution is that the EBC chair needs to have the experience to do the job. The main experience is as a Judge of the superior courts or of ‘relevant experience’. The other stuff about high moral character, proven integrity and so on should be expected of someone with the experience of a Judge of the superior court.
Whatever you may think about Chief Gija Dlamini’s integrity and such like, the fact is that his experience as an electrician / electrical engineer does not equate with that of a Judge of the superior courts. If it did, then we would have electricians sitting on the bench in every court in Swaziland.
I noticed also that the attorney general tried to say that the Swaziland Coalition of Concerned Civic Organisations (SCCCO) could not sue in the High Court because it isn’t a legal body. Of course, we see this argument put forward a lot in Swaziland: any organisation that might be able to offer some expertise is banned from doing so.
In this case they are trying to exclude SCCCO, but in the past every (and I mean every) organisation in Swaziland was barred from contributing to the drafting of what became the Swaziland Constitution (and what the High Court is now asked to rule on).
The way the ruling elites in Swaziland cling to power is by marginalising all opposition. It believes if you only allow individuals to have a voice it is so much easier to silence them. That is why Swaziland’s ‘unique’ democracy has seen political parties banned since 1973 and why the attorney general tried to convince the High Court yesterday that SCCCO is a political party in disguise.
Is it any surprise that high court judges are excusing themselves from the case against Swaziland’s Elections and Boundaries Commission (EBC) that was supposed to start yesterday (11 November 2008)?
Put simply, the Swaziland Coalition of Concerned Civic Organisations (SCCCO) and others are saying that the EBC which ran the Swazi elections in September 2008 was formed unconstitutionally because its members were not appropriately qualified.
But there is a hidden agenda at play. King Mswati IIIappointed the members of the EBC and if the High Court sides with SCCCO it will in effect be saying that the king acted unconstitutionally. And in Swazi culture that would never be allowed to happen.
To a legal outsider like myself it seems an open and shut case. The constitution says that the EBC chair should be a judge and the king appointed Chief Gija Dlamini, who is variously described as an electrician or an electrical engineer. Whatever his real life job title is, he certainly isn’t a judge and therefore, not qualified.
Of course, the king ignores the constitution whenever it suits him. Only last month he appointed Barnabas Dlamini Prime Minister, even though the constitution states that the PM must be a member of the House of Assembly. Barnabas Dlamini wasn’t elected, indeed he didn’t even stand.
So are the judges running scared? So far two have excused themselves. Judge Jacobus Annandale excused himself because Chief Gila Dlamini is chief where the judge lives and (I suppose) he feels he can’t give unbiased opinion. Whether that means he is likely to be biased in favour or against the chief, I’ll leave for you to decide.
The Times of Swaziland reports today (12 November 2008) that another judge, Judge Mbutfo Mamba, has excused himself because he is friends with one of the applicants.
The search is now on to get a full bench of three judges, it remains to be seen who is brave enough to sit in judgement of the king.
Swaziland Coalition of Concerned Civic Organisations.
Today’s long awaited court hearing on the legality of the Elections and Boundaries Commission was further delayed due to the last minute recusal of Justice Annadale due to the fact that the Chairman of the Elections and Boundaries Commission Chief Gija is the judge’s chief.
While we respect the right of the judge to maintain his integrity, independence and the appearance of independence we are dismayed at the late notice.
The Coalition was aware that he was to be one of the judges for over a month and are disappointed that he only realised this potential conflict of interest now. His last minute recusal is now causing difficulties in forming a proper judicial panel. This morning, with the Coalition’s legal team in place and costs mounting we were told that his replacement Justice Mamba has also recused himself.
Musa Hlophe, the Co-ordinator of the Coalition said ‘We sincerely hope that the Chief Justice makes every effort to find an appropriate judge so that this important case can be heard before a full panel this week.’
