DISQUALIFIED BHUTANA WANTS COURT TO STOP SENATE ELECTION

MBABANE – Bhutana Dlamini is adamant that he qualifies to stand for election to the vacant Senate seat.

Dlamini, who was disqualified from the race to replace the late Jimmy Hlophe, has taken the matter to the High Court on an urgent basis. He is seeking an order declaring that he qualifies to stand for the Senate elections. He has also applied that the elections be stopped until the matter is concluded in court. Dlamini (51) of Nkamanzi under Chief Gija, is further seeking an order directing the clerk to Parliament, Speaker and Elections and Boundaries Commission (EBC), to furnish him with or his attorneys with the reason(s) for disqualifying him from the race.

Contesting

Other respondents are the Attorney General, Sifiso Dlamini and others who are also contesting to take part in the elections. Dlamini is represented by Derrick Jele of Robinson Bertram. He wants the court to order that he be furnished with the reason(s), within seven days from the date of service of the order. The Senate hopeful went on to pray that the decision to disqualify him should be reviewed and set aside.  He went on to seek an order that he be granted leave of court to supplement his founding affidavit on receipt of the reasons for his disqualification and the respondents to pay costs of the application. Judge Nkosinathi Maseko presides over the matter. Dlamini told the court that he was nominated by a majority of Members of the House of Assembly to stand for the elections for the vacant seat in Senate.  He submitted that in line with the provisions of Section 96 of the Constitution, he allegedly provided the Clerk of Parliament, as the Returning Officer of the elections, Benedict Xaba, with all valid documents as required.

He argued that despite that he allegedly qualified in terms of the Senate legislation and the Constitution, the clerk of Parliament advised the House of Assembly that he had been disqualified through the vetting process. “No reasons were provided,” Dlamini said. He stated that the House then adjourned the elections and he was to be furnished with the reasons for his disqualification on September 2, 2021. “Up to date, no reason has been provided. I also requested the reasons through my attorneys and they have not been provided,” Dlamini submitted. He told the court that the matter was urgent in that the elections may be called by the Speaker to resume at anytime. He submitted that he feared that the elections would continue despite that the reasons for his disqualification had not been provided. “This is as a result of the silence of the first respondent (clerk to Parliament) on the reason since September 2, 2021 to date. Should that happen, I will suffer irreparable harm in that I will be left out of the elections without a remedy.” The veracity of these allegations is still to be tested in court. The respondents are yet to file their answering papers.

Dlamini informed the court that currently, he was not complaining about the outcome of the elections but the qualification to take part in the elections. He said he had been advised that the Elections Petitions Act would not assist him as it applied to a challenge of an outcome of an election of a person not the disqualification. He submitted that, through his attorneys, he requested to be furnished with the reasons for his disqualification as that affected his constitutional right to a fair hearing and to freedom of assembly and association.

Intention

“The respondents have not provided the reasons. It is clear that the intention is solely to prevent me from standing in the Senate elections which I am entitled to in law,” he added. Dlamini said he was nominated on August 25, 2021 and accepted the nomination. He informed the court that he registered for the 2018 national general elections under the community of Nkamanzi. He attached his voter card to the court papers. He did not contest for election during the general elections is 2018, but voted for someone else. He also told the court that he paid all his taxes and attached a tax clearance certificate. He further informed the court that he applied for a police clearance certificate. He said he submitted all the above documents to the office of the clerk of Parliament. The elections, according to Dlamini, were to take place on September 2, 2021. “I expected to be on the ballot papers but to my complete surprise I was not. The issue of the elections was then tabled in Parliament in the House of Assembly for voting. A majority of the Members of Parliament objected to my exclusion in the ballot papers and questioned the returning officer, the first respondent, why I was not on the ballot papers.” He submitted that the clerk of Parliament merely told him that he had been disqualified and was allegedly not given reasons thereof.

The majority of the House, according to Dlamini, then voted that the elections be deferred and the clerk of Parliament should provide a reason for his disqualification. “My disqualification was reported on social and print media and it is trending as if I have done something wrong. I have qualified to take part in the elections as I complied with Section 96 of the Constitution fully. I expected the first respondent to furnish me or the House of Assembly with the reasons and he has not done so.” Dlamini said he then instructed his attorneys on September 7, 2021, to request for the reasons for his disqualification on his behalf. “Up to date there is no response to the letter and the reason for my disqualification has not been provided. This is the reason that has made me approach the court for the interdict to compel the first –third (clerk of Parliament, Speaker and EBC) to furnish me with the reason for my disqualification. This will enable me to challenge same.”

Disqualification

Dlamini told the court that he had a clear right to the reasons for his disqualification. He said he deserved to know the reasons for his disqualification. The clerk of Parliament, according to Dlamini, as adjudicating authority, was obliged in law to furnish him with the reasons for his decision. He argued that the clerk of Parliament’s failure to provide him with the reasons was clearly prejudicial to him in that he would not be able to take part in the elections. “This is clearly an abuse of power which should not be condoned by the court.” Dlamini told the court that he had no other alternative other than to seek an interdict. He said this was because the House of Assembly sought the reasons for his disqualification and they were not provided. The court, according to Dlamini, should intervene. The matter is pending in court.

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