LAW ON MPS FACING CRIMES NEEDS RETHINK

Everyone is innocent until proven guilty, right? With politics being a dirty game, this presumption of innocence, which is one of the most sacred principles of every country’s justice system, is what has protected the political careers of many individuals. Had it not been there, many politicians would not have had a single foot in the offices they hold.  

For housekeeping purposes, one might need to mention that the concept of being innocent until proven guilty means that anybody accused of a crime is assumed innocent until the allegations leveled against them are proven. The burden of proof is placed squarely on the accuser to show that the accused is guilty beyond a reasonable doubt. The country is now in the process of going to one of its most critical national general (parliamentary) elections in a long time. Without a doubt, the terrain will be rough. Using the justice system, some people will be targeted so that they do not contest for political positions.

I still remember an interview I had with Lobamba Lomdzala Member of Parliament (MP) Marwick Khumalo in January 2013, where he revealed that there were moves to have him arrested so that he could not contest the parliamentary elections that were to take place later that year. He narrated how the Anti Corruption Commission (ACC) together with the Office of the Auditor General (AG) had been tasked to investigate him and that the whole purpose of this was to stop him from participating in the elections.

“Elections come with all its positives and negatives. This is a time for smear campaigns, bad-mouthing and the pull-down syndrome at a scale that has never been seen before and you ask yourself where these have been all along,” Khumalo said, while stating that the degree of the smear campaigns differed according to the individuals’ political standing. “Those MPs that are not as well-known feel it at a lower level but some of us feel it at a higher level because we have been around for a long time. We become the target at a national level not just at a lower level. The impact of the smear campaigns differ according to where you are in the political barometer. If you are on top, the impact is that colossal,” the influential legislator said.

Five months later, he was indeed arrested. That’s how dirty the politics game is. But Khumalo managed to contest the elections with the charges hanging over his head; to this day, they are still hanging. His case is yet to see the light of day in court.  That’s what we are pondering on today. Is it not time that the laws governing the country’s elections are changed? The recent case of Lobamba MP Allen Stewart is what has influenced today’s discussion.

Last month, Stewart was sentenced to a custodial three years after being found guilty of attempted murder. Everyone was taken by surprise by this, mostly because the offence was committed in 2010 and Stewart was relatively unknown in the political arena. The issue that needs to be debated here is that when he contested the elections in 2018, his trial had already begun; should he then have had his candidature given the green light?

Elections

According to the Elections Act of 2013, he was eligible to contest. In Section 88(1), this piece of legislation provides  that; ‘Where a candidate or a person who intends to be a candidate for an election has been charged with an offence mentioned under the Prevention of Corruption Act, 2006, Prevention of Organised Crime Act, Sexual Offences and Domestic Violence Act and the fourth and fifth schedules of the Criminal Procedure and Evidence Act No. 67 of 1938, the Court shall ensure that the proceedings of that matter are expedited and dealt with as a matter of urgency’. In Stewart’s case, there was no expediency as he was sentenced six years after the trial commenced. This needs to be relooked.

In Section 88(2), the law goes on to state that, ‘Where, however, the trial of a person charged in terms of this section is not completed within six months the prosecutor shall submit to the minister a report, signed by the director of public prosecutions DPP and countersigned by the registrar of the High Court, explaining the reason for the delay’. In Stewart’s case, the trial had not been competed but I doubt 100 per cent that the prosecutor submitted this report to the minster as required. I challenge the DPP’s Office to prove me wrong here!

Further, the law, in Section 88(3) states that, ‘Where the trial is still not completed after nine months and a subsequent report by the judge presiding over the case reveals that the delay in finalising the proceedings is attributable to the accused, the accused shall at the end of twelve months if the trial is still not completed, be disqualified from the position in which the accused was elected’. Stewart’s trial was completed after six years; way above the stipulated nine months. And I doubt that it was him who caused the delay in having the case finalised. If it was him, why didn’t the judge file the necessary report and have Stewart disqualified as an MP?

Loopholes

The loopholes in this legislation have disadvantaged the people of Lobamba because they no longer have an MP. Who shoud they blame for electing someone with a pending court case? Themselves; or the EBC? Neither. The crafters of this legislation were well and fair in observing the ‘innocence until proven guilty’ principle, but is it not time this is further reinforced by ensuring that the enforcers of the law also honour their obligation in as far as our electoral laws are concerned. I wholly support the principle, mind you, because had it not been there, we would have been deprived of the vibrancy and astuteness that the likes of MP Khumalo have brought to the country’s political landscape. Khumalo’s case was a definite smear campaign, which is why I doubt he will ever be brought to trial.

Most people might recall that MP Khumalo’s status as a legislator was once challenged by Hosea MP Mduduzi Bacede Mabuza who wanted the Minister of Justice and Constitutional Affairs, Pholile Shakantu, through the EBC, to disqualify Khumalo under the argument that his stay in office was against the provisions of the laws governing both qualification and disqualification for one to stand for elections. His grounds for seeking the disqualification of Khumalo were based on Sections 96 and 97 of the Constitution which provides the mandatory disqualification to stand for elections of Members of Parliament and disqualification of such. He also cited the said Section 88 of Elections Act. It was Attorney General Sifiso Khumalo who had to remind Mabuza that the matter was still pending in court. He said the chief justice, prosecutor with the help of the DPP should give their reports, which would then grant the minister power to disqualify any MP.

Drafters

He said for that reason, the minister could not disqualify any MP. What MP Mabuza did was well within his rights and should not in any way be seen as attacking a colleague, but as a means to have the drafters of the country’s laws have a rethink on how the legislation could be amended to ensure the maximum protection of both the candidates and the electorates. Otherwise, as things stand, the possibility is high that we might have sitting legislators jailed for matters that pre-date their election, thereby leaving constituencies without representatives or forcing the EBC to hold by-elections, which come at a huge financial cost and are time-consuming.

Presently, the country witnessed the arrest of two MP; Mtfongwaneni MP Roy Farnourakis and Matsanjeni South MP Bomber Mamba. The charges that these two MPs face are of a serious nature and they could result in custodial sentences in the event they are found guilty. But until then, they are eligible to stand for the upcoming elections, as long as the voters are happy with them and feel they deserve another five-year term in Parliament.
Should they be re-elected, they will be looking over their shoulders for five years wishing that their trials do not get underway. That is an uncomfortable position. Hello EBC! Hello AG’s Office! Is there anybody home?

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