ELECTIONS LOSERS CANNOT RUN FOR SENATE – COURT

MBABANE – “If the people have rejected a candidate at primary level, there should be no room for that candidate to wiggle his/her way into Parliament via the Senate election process.”

This is according to the Supreme Court, in its judgment granting government’s appeal against the finding of the High Court, constituted as a Constitutional Court, that Section 5(3) of the Senate Elections Act No.7 of 2013 was unconstitutional. The judgment was issued yesterday by Judge Majahenkhaba Dlamini, who was sitting with Judges Jacobus Annandale, Sabelo Matsebula, Judith Currie and Mbutfo Mamba.
Section 5(3) of the Act states that an unsuccessful candidate in the recent general elections shall not be considered for nomination (to the Senate).

King

Eswatini has a Parliament made of the House of Assembly and Senate. A portion of senators is elected by members of the House, following a general election and the other portion is appointed by the King. This matter came to court in 2018, after Michael Masilela, who is the Lobamba Member of Parliament (MP)-elect, lost in the primary elections that year. He challenged Section 5(3) at the High Court, citing that it was unconstitutional and discriminatory in that it prevented him from contesting for a Senate seat. A full bench at the High Court ruled in his favour. The prime minister (PM), minister of Justice and Constitutional Affairs and the attorney general (AG), filed an appeal, which was argued on September 20, 2023.

Judge Dlamini stated in the judgment that qualification for a seat in either the House of Assembly or Senate was not a birthright of any kind.  The judge said the temporary disqualification established by Section 5(3) was aimed at fostering discipline in parliamentary elections. Whoever fancies himself/herself a seat in Parliament, according to the court, must choose one of the two Parliament chambers.

“This would ensure respect and credibility of Parliament as an institution, in particular, the Upper House (Senate). With respect, I do not see where respondent (Masilela) bases his right as an unsuccessful MP candidate to be accessible for a nomination to the Senate. In our system of parliamentary elections, no one may present himself/herself for election. That is why the nomination of parliamentarians is conducted openly on the day set for that purpose.

Nomination

“In our Senate nomination in terms of the Senate Elections Act, the nomination is proposed and seconded on the floor of the House at its first business. The nomination is then formalised by a returning officer present at the House at the time of nomination. The nomination begins and ends on that same day and designated place,” said the judge. Section 5 of the Senate (Elections) Act, according to the court, must be seen as part of a continuing process beginning at primary nominations and ending with the election of the senators.

Judge Dlamini said Section 5(3) was not discriminatory in any invidious sense. He said the correct way of looking at Section 5(3) was from the point of view of its context as part of a legal control regime, with a view to managing who may or may not be eligible for Parliament at any given time. Judge Dlamini mentioned that Section 5 (3) does not fall under any part of Section 20 of the Constitution, which is about equality before the law.
The judge pointed out that a provision, which set 25 years as the qualifying age for Senate and thereby disqualifying persons above 18 years but below 25 years would not be said to be discriminatory. He said Section 5 (3) was in the same league.

“It says persons who had been unsuccessful in the recent general elections may not be available for Senate. The provisions of Section 20 have self-limiting or qualifying factors such as gender, race, colour, etc of which none is to be found in Section 5(3), nor is the section discriminatory of itself or in its effect.

“Differentiation or different treatment involves picking and choosing from the same group of similarly situated persons or things. The section would be discriminatory if among the group of unsuccessful MP candidates some of them were selected for different treatment. “This is not the case with the section. Unsuccessful MP candidates and untested candidates are two groups that share no common factor, which could be used as a basis for equal or unequal treatment to defeat Section 5 (3),” reads part of the judgment. Judge Dlamini also stated that, with respect, Section 5(3) punished no one. He said the most that may be said was that it limited the scope or range of selection of senators by the members of the House.

“As for the unsuccessful MP candidates, they lose nothing by being overlooked. None is owed anything for going or not going to Parliament. That our system of governance is ‘participatory’, simply means that the general populace has a hand or role in the government of the kingdom, if not directly then indirectly through their elected/appointed representatives.

“By Section 5(3), the Act of Parliament temporarily disqualifies an unsuccessful MP candidate. The Constitution permits Parliament to enact a law such as Section 5 (3). If the section is said, as the court a quo (High Court) said, to limit the right conferred in Section 84 (right to representation), the answer is simple: Let the people of Section 84(emaSwati) challenge Section 5(3),” Judge Dlamini said.

Mandate

He mentioned that the section did not discourage participation in elections. He said after all, when the elected MPs nominated Senate candidates, the people would have virtually finished their electoral mandate to elect Parliament. The court stated that it then remained for the members of the House to approach and nominate candidates for Senate in terms of Section 94 (2) of the Constitution and Section 5 of the Senate (Elections) Act 2013. Section 94(2) provides that 10 senators, at least half of whom shall be female, shall be elected by the members of the House in such manner as may be prescribed by or under any law at their first meeting so as to represent a cross-section of the Swazi society.

Judge Dlamini further pointed out that one manifest purpose of the section was to exclude people who might be considered as undesirable for Senate, which was a worth-while goal to enhance and protect the dignity of Senate. Masilela, according to the court, had no enforceable right to a place in Senate, unless he had already been elected or appointed. Judge Dlamini said the court saw nothing unfair in him being prevented from joining the race to Senate. He had not shown what was unfair in being prevented to avail himself for Senate, according to the court. Government was represented by the AG, Sifiso Khumalo, while Mlindeni Magagula of Zonke Magagula and Company appeared for Masilela.

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