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ONLY 2023 ELECTION VOTERS CAN PARTICIPATE IN REFERENDUM

02/04/2023 17:07:00 Mfanukhona Nkambule

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MBABANE –If the nation can decide to have a referendum after the 2023 elections, only people registered as voters can participate.

People not registered for the general election, but believe that the Tinkhundla System of Government should be replaced by the political party system, can be left out of the voting process.
In terms of the Constitution, Tinkhundla can only be removed by a three-quarter membership of both chambers of Parliament and a referendum vote. People eligible to cast votes in a referendum should have registered as voters in the most recent election. In terms of Section 246 (3) of the Constitution of the Kingdom of Eswatini, the Tinkhundla-based political system falls under specially entrenched provisions. A specially entrenched constitutional provision makes certain amendments either more difficult or somehow impossible to pass.

registered as a voter

Reads Section 246 (3) of the Constitution: “Where a bill in terms of this section has been duly passed at a joint sitting that bill shall not be presented to the King for assent unless it is approved by a simple majority of all votes validly cast at a referendum in such manner as may be prescribed, at which every person who at the time of the referendum is registered as a voter for purposes of the elected members of the House shall be entitled to vote.” Tinkhundla, as a political system, is protected by Section 79 of the Constitution of the Kingdom of Eswatini. Reads the section: “The system of government for Swaziland is a democratic, participatory, tinkhundla-based system which emphasises devolution of state power from central government to tinkhundla areas and individual merit as a basis for election or appointment to public office.” It must be said that Section 79 falls under specially entrenched provisions of the Constitution. It has also been learnt that the process to amend Section 79 starts with a legislator, who introduces a Bill for the amendment. This is called a private member’s Bill. It is different from a motion.

A Bill is a proposed legislation under consideration by a Legislature. It does not become law until it is passed by the legislature as well as, in most cases, approved by the executive. In the case of Eswatini, it has to be approved (assented) by His Majesty the King. Before the referendum vote is sought, the Bill should have been passed at the joint sitting of Senate and House of Assembly. In its final reading, it should be supported by votes of not less than three-quarters of all the members of the two chambers. For the Bill to be passed in order to pave way for the referendum, 78 parliamentarians should be in favour of the amendment. There are 103 parliamentarians. The specially entrenched provisions in terms of Section 246 (2) are as follows:

(a) The Kingdom and its Constitution: Section 2;
(b) Monarchy: Section 4, 5, 7(2), 7(3), 8(2), 9, 10, 11;
(c) Protection and Promotion of Fundamental Rights and Freedoms Chapter III
(d) The Executive: Section 64, 65, 66(1), 69(1), 69(2);
(e) The Legislature: Section 79, 84, 93, 106, 108, 115, 119(1), 134;
(f) The Judicature: Section 138, 139, 140, 141, 146, 151, 153(1) 155, 158, 159 except 159(5);
(g) Director of Public Prosecutions and the Commission on Human Rights: Section 162(1), 162(4), 162(6);
(h) Public Finance: Section 207(1);
(i) Land, Minerals, etc: Section 210(1), 211(1), 213;
(j) Traditional Institutions: Section 227, 228, 229; 230; 231;
(k) Amendment of the Constitution: Chapter XVII;
(l) Miscellaneous: Chapter XVIII in its application to any of the provisions referred to in this section except section 251;
(m) The First Schedule in its application to any of the provisions referred to in this section.

Tinkhundla falls under legislature in the specially entrenched provisions. It may not be as easy as some may think, if the Constitution is not waived. However, if others insist on the application of the supreme law, the route to change starts with the joint sitting and ends with the referendum vote. It is stated that the Bill shall not be introduced unless it has been published in the gazette.

published in the Gazette

It shall be published in the gazette not less than 30 days before the introduction at the joint sitting. After it has been introduced in the joint sitting, it is provided in the law that no further proceedings shall be taken on the Bill in Parliament until the prescribed period has elapsed. If, after the prescribed period, it is passed at the joint sitting and or at a referendum with the requisite majority, it shall be submitted to the King for assent. That is how, in terms of the Constitution, Tinkhundla and other provisions can be amended to allow a new political system.
The People’s United Democratic Movement (PUDEMO) has ordered its members not to register or vote under the Tinkhundla System of Government. Sive Siyinqaba National Movement and the Swaziland Liberation Movement (SWALIMO) have allowed their members to participate in the election, in order to change the political system from within. Inhlava whose chairman is former Minister of Health Mfomfo Nkhambule, will also allow its members to vote under the Tinkhundla System of Government.

worrying political divide

In August 2021, MP Macford Sibandze advised the country to solve the worrying political divide through a referendum, to determine what the people wanted at present. He said he had never seen such a divided nation. However, Thami Hlatshwayo, the Secretary General of the Ngwane National Liberatory Congress (NNLC) is on record denouncing the logic behind the referendum. Hlatshwayo argued that his fundamental right to choice and freedom of association should not be subjected to a referendum vote. He said it was his right to have a political party of his choice representing him in the governance of the country.

In an interview yesterday, Sikelela Dlamini, the Secretary General of the Swaziland Multi-Stakeholder Forum (MSF), said their non-participation in the general election was a statement of declaration that that ‘there is something wrong with the Tinkhundla System of Government’. He said while it might be true that registered voters could have the privilege to participate in the election, they did not want to declare that they would have deprived themselves of their right to make changes through the referendum.

global concern

Dlamini said the Constitution of the Kingdom of Eswatini was a good document at comprehensively addressing issues of global concern, such as human rights, but lagged behind in the practical application of the supreme law. The secretary general said he was fully aware that those in authority would object to any plan to have the referendum. The former secretary general of the Swaziland National Association of Teachers said tradition practically superseded Roman-Dutch based common law system and the Constitution.