Times Of Swaziland: INCLUDING MKHULULI ON NOMINEES LIST WILL CAUSE CHAOS – AG

INCLUDING MKHULULI ON NOMINEES LIST WILL CAUSE CHAOS – AG
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Welcome Dlamini on 20/08/2023 17:23:00


MBABANE – The Elections and Boundaries Commission (EBC) is challenging the
High Court order to have outgoing Senator Mkhululi included in the list of
Member of Parliament (MP) nominees.
Through the attorney general (AG), the EBC Chairperson, Prince Muhlabuhlangene,
has filed papers at the Supreme Court and believes that this order by the High
Court will put the whole election into disarray, resulting in the timeline for
holding elections within 60 days after dissolution, as prescribed in Section
136(1) of the Constitution Act of 2005 and the Proclamation of General Elections
No.95 of 2023, not being met. Thus, the EBC argues, that this will render the
whole election unconstitutional and, in addition, there is a likelihood of
lawsuits ensuing against the commission of the order of the High Court to be
implemented. On Friday, High Court Judge Zonke Magagula gave the EBC two
options: the first was that the EBC should hold a special nomination process at
Maphilingo Royal Kraal to determine the nomination of Mkhululi; the second was
that the EBC should include Mkhululi’s name in the list of nominees for MP
position for Maphilingo Royal Kraal.
offended
The judge said either of the two is to be done by noon on August 21, 2023
(Monday). In the appeal papers filed last night, the EBC has submitted that it
is offended by the miscarriage of justice in the High Court, hence the
application for the Supreme Court’s intervention using its supervisory powers
as envisaged under section 148 (1) of the Constitution. Section 148 (1) provides
that: “The Supreme Court has supervisory jurisdiction over all courts of
judicature and over any adjudicating authority and may, in the discharge of that
jurisdiction, issue orders and directions for the purposes of enforcing or
securing the enforcement of its supervisory power.” The EBC said it had
identified a number of exceptional circumstances in the form of gross
irregularities, injustices and/or errors of law allegedly committed by the
learned High Court, which warrants that the Supreme Court exercise its
discretionary powers and intervene in terms of the said section 148 (1) of the
Constitution. The EBC has listed a number of alleged gross irregularities,
injustices and/or errors of law. The commission has urged the Supreme Court to
take note, from the onset, that in Mkhululi’s notice of appeal, there was no
prayer for a relief sought by him.
justification
“Despite that the applicant raised a point of law that there was no prayer for
relief sought by the respondent, the court a quo overlooked that defect without
any lawful justification and dismissed such point of law,” the EBC has argued.
The EBC has alleged that firstly, the High Court committed an error of law and,
therefore, a miscarriage of justice has been done by failing to follow the
procedure for handling of appeals as outlined in Section 19 of the Voter
Registration Act No. 4/2013, in particular Section 19 (3), by failing to order
the party at whose request the decision is submitted to furnish security for any
costs allowed against that person, which failure to furnish such security
rendered the appeal withdrawn. “This is of grave importance because, although
it has been widely reported in the newspapers that the respondent has deposited
security costs, there is no evidence to prove this,” the EBC has submitted.
application
The EBC, through its Chairperson Prince Muhlabuhlangene, last week filed an
application for an order that Mkhululi should deposit an amount of E200 000,
which was to be in the custodian of the registrar of the High Court. The EBC
wanted Mkhululi to avail the money before Friday’s appeal, in terms of Section
19(3) of the Elections Act of 2013. Mkhululi had said he would raise the money
and that he had deposited the amount as required. Secondly, in the papers filed
yesterday, the EBC have alleged that the High Court committed an error of law,
which resulted from a gross miscarriage of justice by ordering the commission to
hold a special nomination process to determine the nomination of Mkhululi at
Maphilingo Umphakatsi, a place where he was openly rejected when an attempt to
nominate him was made. “This prayer has not been applied for by the respondent
nor has there been any assertion that he was duly nominated at Maphilingo
Umphakatsi. The prayer was mero motu granted by the court a quo (the High Court
made a decision on its own without being prompted by anyone else), thus by so
doing, the court a quo committed a grave error of law and this court should
intervene. The court a quo acted ultra vires its powers by granting prayers
which were not prayed for by the appellant,” the EBC avers.
committed
Thirdly, the EBC alleges that the High Court committed a grave error of law,
which resulted in a gross miscarriage of justice by ordering that alternatively,
the commission should include the name of Mkhululi in the list of nominees for
the MP position at Maphilingo Umphakatsi. The commission has submitted that the
High Court failed to take into consideration that it is bound by the law and
should act in terms of the law when exercising its powers. “The applicant
cannot just wake up in the morning and decide to include or exclude a voter in
the voters’ roll without following the due process of the law. In this case,
in order for a person to be included in the voters’ roll, he or she should
have been nominated by registered voters at his or her chiefdom,” the EBC
further submitted.
The commission has further stated that Mkhululi’s nomination was not performed
and/or completed as there was riot of the voters at Maphilingo Umphakatsi caused
by the inclusion of his name in the voters register, when he was not from
Maphilingo, even before his alleged nomination was formally completed. The EBC
has argued that by ordering the inclusion of Mkhululi’s name in the list of
nominees for the Maphilingo Umphakatsi MP position, the High court committed a
gross miscarriage of justice as the law should be complied with at all material
times and the commission should always be guided by the electoral laws of the
land including, but not limited to, the Constitution Act No. 001/2005, the
Elections and Boundaries Commission Act of 2013, the Voters Registration Act of
2013, the Elections Act of 2013, as well as the Proclamation of General
Elections of Members of the House, indvuna yenkhundla and bucopho Legal Notice95
of 2023.
process
Fourthly, the EBC has alleged that the High Court granted the prayer for a
special nomination process without considering that the nominations that were
held at Maphilingo Umphakatsi on July 22, 2023, were not nullified through a
court order, thus they still stand. “This puts the other nominees in a
precarious situation, since they were not cited in the proceedings before the
court a quo and thus their side of the story was not heard,” said the
commission. The EBC has added that because of all these factors, the order of
the High Court will surely put the whole elections in disarray. The commission
believes that the order by the High Court is unenforceable because not only is
it tantamount to imposing Mkhululi on the people thus taking away the right of
the people of Maphilingo to be represented by their own freely chosen
representatives, much against the spirit of Section 84 (1) of the Constitution.
“The order also presents another hardship because all ballot papers and
elections material have already been procured and printed and there is no budget
that is specifically set aside for the respondent,” the EBC submitted.
argues
The Commission also argued that the elections process was no longer at
nominations stage and has progressed to primary elections and there was no
guarantee that Mkhululi shall be nominated, hence the order is not justifiable
in law and its effect will unnecessarily burden the EBC to incur the cost of the
nominations and reprinting the ballot papers, which processes have already been
finalised. Additionally, the EBC is of the view that the order of the High Court
has the implication of usurping the powers of the commission, whose decision is
final in terms of the determination of whether or not a person is duly nominated
as provided in Section 34 (5) of the Elections Act 6/2013.  The matter is before
the Supreme Court, under a certificate of urgency and the EBC is seeking a stay
of the order issued by the High Court on Friday. The EBC argued that if the
matter was to take its normal course, the commission would be expected to
implement the impugned court order on the prescribed date of the August 21,
2023. The commission said it would not be afforded substantial relief in due
course because the date, which was prescribed by the High Court for the
implementation of the impugned court order, would have passed and the order
implemented. Further, the EBC said if the matter can be dealt with in terms of
the normal time limits, the commission would be held in contempt of court.