HIGH COURT HEARS POLITICAL PARTIES, MPS FLOUT CONSTITUTION

MBABANE – Standing Parliament committees have the powers, rights and privileges of the High Court.

This is a constitutional provision found in Section 129 (5). Such committees have the powers, rights and privileges of a Justice of the High Court at a trial for enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise. In the same way the High Court does, the members of the Parliament (MPs) committee have powers to compel the production of documents and issue a commission or request to examine witnesses abroad. On Thursday, the Portfolio Committee on the Ministry of Justice and Constitutional Affairs is said to have failed to execute its duties like the High Court.

The committee, under the leadership of Kwaluseni MP Sibusiso Mabhanisi Dlamini denied the African United Democratic Party (AUDP) the right to make a submission on the Elections (Amendment) Bill of 2023, in their capacities as a political party. Instead, the members of the AUDP who included its Secretary General Sibusiso Dlamini, were advised to make their submissions in their individual capacities. Legal opinion sought by the Times SUNDAY from different legal eagles corroborated the fact or arguement that political parties could only be denied the privilege or right to contest elections and form a government. This is on the basis of a constitutional provision in Section 79, which reads: “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 has been learnt that the ‘individual merit’ as referred to during the Parliament committee sitting by the Kwaluseni MP applies to ‘election or appointment to public office’. It does not apply to submissions in a constitutional dispensation presumably unfolding in the country, particularly on the basis of Section 25 (1) which reads: “a person has the right to freedom of peaceful assembly and association.” Subsection 2 reads: “A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of peaceful assembly and association, that is to say, the right to assemble peacefully and associate freely with other persons for the promotion or protection of the interests of that person.”  

High Court

It has been learnt that, on several occasions, the High Court has allowed political parties to file affidavits. They filed the court applications in their capacities as political parties. Political parties who filed court applications and heard by the High Court are the People’s United Democratic Movement (PUDEMO), Ngwane National Liberation Congress (NNLC) and Swaziland Democratic Party (SWADEPA). In the High Court of Eswatini, SWADEPA appears as second applicant in its case against the Elections and Boundaries Commission (first respondent), prime minister of Eswatini, minister of Justice and Constitutional Affairs, minister of Home Affairs, minister of Tinkhundla Administration and Development, national commissioner of police and the army. This is Case No. 805/2018. In this case, Mbongiseni Cyprian Shabangu was the first applicant, while Sanelisiwe Tababe Debra Dlamini was the third applicant.   

The general import gathered from the prayers in this application is, among others, that the first respondent be interdicted from restraining first and third applicants from campaigning for elections and advocating policies and programmes under the banner and manifesto of second applicant respectively. The prayers were strenuously opposed. Presiding over the case were Justice Mzwandile Fakudze, Justice Majahenkhaba James Dlamini and Judge Ticheme Dlamini. In its judgement, the court considered the submissions by both parties and held the view that the applicants’ application was defective and therefore ought to be dismissed for those reasons. “For this reason, the court dismissed the application with no order as to costs,” reads the judgment in which SWADEPA was a party to the application heard by the three judges. There was also another case in which political parties were heard by the Supreme Court. The appellants in the case were Jan Sithole, a trustee of the National Constitutional Assembly-Trust, Mario Masuku, PUDEMO, Dominic Tembe, NNLC, Swaziland Federation of Trade Unions (now TUCOSWA after a merger with Swaziland Federation of Labour) and Swaziland National Association of Teachers (SNAT). The respondents were the prime minister, government, attorney general and others.   

This is Appeal Case No.35/2007. PUDEMO, NNLC and others wanted the court to strike down and declare null and void the entire Constitution of the Kingdom of Swaziland (Eswatini), which came into existence with an enactment on July 26, 2005. They had previously asked the High Court to do so but it refused their application, hence this appeal. As an alternative the appellants sought an order directing the Eswatini Government to convene a constitutional assembly, national convention or other democratic institution, broadly representative of the society to discuss the Constitution. The order was to compel government to also consider oral and written representations in regard to it in order to facilitate the adoption of a legitimate final Constitution by His Majesty the King and all the people of Eswatini. To this end, the appellants sought an order suspending and setting aside the present Constitution for a period of two years. The basis for the appellants wishing to strike down the Constitution or seeking the alternative orders was a complaint by them that in the process involved in bringing the present supreme law into being, they were excluded from participating in it and from making oral and written representations on behalf of their members and of the persons they represented. As indicated above, the eight appellants represented a variety of interests. The first to hear the case was Justice Bheki Maphalala, now the Chief Justice.

allowed to participate

Justice Maphalala did not decide whether the appellants should be allowed to participate and participate fully in the forthcoming national elections. Hearing the appeal filed by PUDEMO, NNLC and others were Judge P.H. Tebbutt, Judge N.W. Zietsman, Judge Michael Ramodibedi (now late) and Judge J.G. Foxcroft. They agreed that the Supreme Court could not embark on that exercise because it was actually a court of appeal, not one of first instance. “There is no judgment on appeal before it on the issue raised. Moreover, the court was informed that there is pending before the High Court an application dealing with the very issue now raised. This court cannot, therefore, entertain any appeal on it before the decision of the High Court has been pronounced,” reads the judgment. Notably, the High Court and Supreme Court did not deny the political parties the privilege and right to be heard. At the High Court, it must be said that Judge Maphalala had found that the application was not urgent even though he had not dealt with the substantive arguments raised by the political parties that Section 25 of the Constitution entitled them to participate in the local government elections.

A political analyst told this newspaper that the parliamentary committee should not have worried itself about the labels of stakeholders making submissions before it. He said this was due to the fact that its main concern was to get varied opinions that could only enrich the legislation at hand. “It does not mean that the committee should incorporate everything that they collect from stakeholders,” the political analyst said. “It is often said the country’s political system does not discriminate against political parties’ faithful and even giving examples of how Obed Dlamini and Jan Sithole, both presidents of NNLC and SWADEPA, respectively, made it to Parliament,” the political analyst said. “It is my properly considered view that the parliamentary committee acted ultra vires and it needs to be called to order.” Ultra vires means 'acting or done beyond one’s legal power or authority'. The last time an attempt to silence a partisan liSwati was in 2013 when Jan Sithole (late) introduced himself as the President of SWADEPA. He was rebuked by Chief Mvimbi Matse for introducing himself as leader of a political party.

Sithole continued to address the King on national issues, with His Majesty the King smiling and did not take issue with the late former SWADEPA president’s declaration. The Times of Eswatini reported that the AUDP had wanted to submit a document on multiparty elections and implementation of the SADC Troika recommendations. The members of the portfolio committee who attended the Thursday session included Gilgal MP Sandla Fakudze, Sithobelweni MP Bhekitje Dlamini, Nkomiyahlaba MP Welcome Shongwe and Manzini North MP Macford Sibandze. MP Mabhanisi Dlamini, the Chairperson of the portfolio, neither answered the telephone call nor responded to the questionnaire texted to him yesterday. His deputy, MP Macford Sibandze said the Kwaluseni MP was the appropriate authority to comment on the issue because the sitting was presided over and concluded. Sources within Parliament suggested that the committee received legal opinion that the AUDP members should address it in their individual capacity, not as party representatives.

Committees of Parliament (Section 129, Constitution)
(1) Each chamber of Parliament shall appoint sessional committees and other committees as may be necessary for the effective charge of the functions of that chamber.
(2) The standing committees shall be charged with such functions, including the investigation and inquiry into the activities and administration of ministries and departments as Parliament may determine and the investigations and enquiries may extend to proposals for legislation.
(3) Every member of Parliament not being a Minister shall be a member of at least one of the standing committees.
(4) The composition of the committees shall, as much as possible, reflect the different shades of opinion or interest in Parliament.
(5) A committee appointed under this section shall have the powers, rights and privileges of the High Court or a Justice of the High Court at a trial for −
(a) enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;
(b) compelling the production of documents; and
(c) issuing a commission or request to examine witnesses abroad.

Protection of freedom of assembly and association
25. (1) A person has the right to freedom of peaceful assembly and association.
(2) A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of peaceful assembly and association, that is to say, the right to assemble peacefully and associate freely with other persons for the promotion or protection of the interests of that person.

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