GOVT PAYS MTHANDENI, BACEDE E1.1M

MBABANE – After being kept in suspense for about four months, after their former colleagues received their gratuity, Mduduzi Bacede Mabuza and Mthandeni Dube have finally been paid.

The Times SUNDAY can reveal that the former MPs have received their ex-gratia lump sum payment. It has been established that government has already processed the payments for Mabuza and Dube, who represented Hosea and Ngwempisi  constituencies in the 11th Parliament. Meanwhile, the former MPs had been left in dilemma as it was unclear whether they would eventually be paid their gratuity. However, after extensive consultations, Parliament resolved to process their payment. Despite the former legislators’ conviction, they were still legally entitled to receiving their gratuity as there is no law in place that deprives them of that right. This is because they are yet to be sentenced. The sentencing will come after the expiry of their term of office. The gratuity was paid to all former MPs who did not return to Parliament in November 2023. Conspicuously, Mabuza and Dube were left out.

convicted

The two former legislators were convicted under Suppression of Terrorism Act, stemming from the political unrest of June 2021. They have been in jail since then and were convicted in June 2023, ahead of the dissolution of the 11th Parliament in July 2023. According to Finance Circular No. 2 of 2013, the ex-gratia payment is a grant that is payable to former parliamentarians, to assist with the costs of adjusting to non-parliamentary life. The circular states that the only reason for a former politician to forfeit the ex-gratia is if they were removed from office due to misconduct or incompetence. According to the circular, the former politicians are paid a lump sum equivalent to their annual salary. The former legislators are eligible for the benefits because they were never removed or dismissed from the august House.

Sources close to the legislators who commented on condition of anonymity, confirmed that indeed they had been finally paid their gratuity. “I can confirm that they have received their gratuity this month. However to get a clear confirmation on the matter, you need to direct your questions to the Clerk to Parliament,” he said. Clerk to Parliament Benedict Xaba, who is also the controlling officer for Parliament, said he was not in a position to divulge whether the former legislators were paid their gratuity or not as that was a private matter and could pose a security risk to the former MPs and their families.

remuneration

Xaba said he resorted not to confirm parliamentarians’ remuneration as he had previously been flooded with questions from members of the public who lined up in Parliament to enquire if legislators had been paid their salaries of gratuity. “Unfortunately I cannot confirm if they have been paid or not because I could find myself putting the former MPs and their families at risk. It is better if they are the ones who confirm whether they have received their gratuity or not,” he said. Xaba, however, stated that as he previously mentioned, there was no special issue regarding the payment of the said MPs’ gratuity. He said as Parliament, they have processed all the paperwork following the consultations as they were requested to do so when processing the payment of then convicted MPs salaries and other benefits. This week, the convicted MPs made their statements at the High Court, where Mabuza made an unsworn statement, where he revealed that he would rather die or stay in jail for his differing views and the truth.

Mabuza said despite having been paraded naked and lampooned while in prison, he still believed the country needed political reforms, where people would be treated respectfully, have equal job opportunities in the economy and where there would be no one without a job. The former MP added that it was not in dispute that emaSwati wanted to be freed and elect their own government. Mabuza further mentioned that despite his arrest and subsequent conviction, he was still adamant that the country needed democracy. He told the court that through his interaction with ordinary people, he could sense the deep anguish, frustration and desperation for change.

interest of many

Mabuza added that he continued to believe that their collective future ought to be constructed in the interest of the many, not a selected few. Adding, the former legislator said when he accepted the higher calling, that of being a pubic representative, he was alive to the sacrifices it would entail and that he accepted that for the nation to live, individual interest must die.
Mabuza went on to tell the court that despite the fact that all his properties were repossessed, it would not change his stance that emaSwati needed freedom. He further told the court that he lost everything he had worked hard for, including his 14 shops. The former legislator was the owner of Baceth Hardware, which had branches all over the country.

Meanwhile, Dube, who made a sworn statement said Mabuza’s statement had nothing to do with him. He disassociated himself from Mabuza’s statements when he took to the dock to make his submissions. Dube said prison life was miserable that he did not wish for any of his relatives and children to be in that place. He further mentioned that there was a lot he went through while in prison, but did not wish to talk about it. He added that as a goat and cattle farmer, he had been informed that his business, through which he supported his three children, sickly mother and his deceased brother’s children, was not doing well. He stated that his continued stay in prison would see his family and dependants engulfed in poverty. Dube pleaded with the court to consider his sickly mother, children and his late brothers’ children as well as about 150 needy children he supported when passing sentence.

Meanwhile, along with their former colleagues, last year, the former legislators also received over E400 000 as a tax-free pension allowance, the equivalent of one-third of their five-year savings following the dissolution of the 11th Parliament. A Parliament seat is forfeited on sentence. Therefore, without the sentencing, there was to be no by-elections or declaration of their seats as vacant. Section 99 of the Constitution of the Kingdom of Eswatini provides that a parliamentarian ceases to be a member when he or she has been sentenced by a court in any country to death or imprisonment (by whatever name called) for a term of or exceeding six months, including a suspended sentence.

imprisonment

Section 99 (1) reads: “Where a member of the Senate or the House is arrested for an offence which is a criminal offence in Eswatini sentenced by a court in any country to death or imprisonment (by whatever name called) for a term of or exceeding six months, including a suspended sentence, that member shall forthwith cease to be such a member and the seat of that member shall become vacant at the expiration of a period of 60 days from date of that sentence.” The said section does not apply where before the expiration of two months, the parliamentarians receive a free pardon or the conviction is set aside or the sentence is reduced to a term of less than six months or a punishment other than imprisonment is substituted. According to the Constitution, where the sentence of the members of Parliament has been reduced to a term less than six months but more than two months, they shall be deemed to have been suspended by the House for the duration of the effective term of imprisonment, unless the concerned chamber resolves otherwise.

Mabuza and Dube were convicted on June 1, 2023, after their arrest on July 25, 2021. Their trial commenced in November 2021. They were denied bail several times. On the other hand, the seat for self-exiled former Siphofaneni MP and now President of the Swaziland Liberation Movement (SWALIMO), Mduduzi ‘Gawuzela’ Simelane, became vacant on the strength of Section 98 (1) (c) of the Constitution. Section 98 (1) reads: “The seat of a senator or of a member of the House shall become vacant where the holder is absent for 20 sittings of the chamber during any meeting of that chamber without the permission in writing of the presiding officer and is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges.” He was also not eligible for the ex-gratia payment because this is a facility for former parliamentarians to adjust to non-parliamentary life as dictated in the Finance Circular No.2 of 2013.

benefits

The Ministry of Finance issued a memo in July 2023 that members of Parliament would continue to receive their benefits until the new Parliament was in place. As a result, the duo received a one-third lump sum of E400 000 from their pension savings. In total, each former legislator was likely expected to get E988 000. They were then eligible for a combined payout of E1 976 000. The ex-gratia can be defined as a favour, not compelled by legal right. It is now a legal benefit because government included it in the conditions of service for parliamentarians. However, it is the discretion of employers to consider an ex-gratia payment as a benefit for workers. Other employers around the world pay ex-gratia allowances to non-striking employees. In Eswatini, the only time an ex-gratia payment is forfeited by the former parliamentarians is when they have been ‘dismissed’ or ‘removed’ from office because of ‘misconduct or incompetence.’ 

Since the convicted former MPs were not sentenced until the new Parliament is in place, impeccable sources familiar with such matters said ‘they were now regarded as former MPs.’  Finance Circular No.2 of 2013 is only applicable to the 11th Parliament as the 12th Parliament has its own document titled “Finance Circular No.2 of 2023. According to the memo issued by the Ministry of Finance on July 25, 2023, the Finance Circular No.2 of 2013 should be applied strictly in the payment of salaries, allowances and terminal benefits for parliamentarians and their support staff. “Parliamentarians’ salaries and allowances accruing to them under Circular No.2 of 2013 to be paid in full until the day preceding the first meeting of the House following the general election,” read the memo.

sworn-in

The first sitting of the 12th Parliament was on October 2, 2023, when they were sworn-in. They also elected the Speaker, Jabulani Mabuza, who is also the former Minister of Agriculture.
His Majesty the King dissolved the 11th Parliament on July 11, 2023. The re-appointed Minister of Finance, Neal Rijkenberg, was last year quoted by the Times SUNDAY having said the circular was clear, but the concern was ‘who had to determine the misconduct as such mandate fell outside the ambit of the Ministry of Finance’. He said those who were responsible for the code of conduct for MPs could best answer the question. Attorney General Sifiso Khumalo, also an ex-officio member of Parliament, had said in a previous interview that gratuity was paid at the end of term as per the circular. “You recall you once said these are outgoing MPs because they are still remunerated - you were partly correct, the argument is that in principle, the term has ended, but in reality the term ends on the last day of remuneration,” the AG said in the previous interview. Technically, he said it was not yet a factor that Parliament was dissolved. He said they did know if sentencing would be ordered before or after the last remuneration date.

honest discussion

“We can then have an honest discussion in my view,” Khumalo said. He said an ex-gratia was discretionary upon the employer, not obligatory. Xaba said the question on the matter was a tricky one. However, he said, as Parliament, after getting the court judgment, would engage with the office of the attorney general to get guidance on how to move forward. A private attorney said the issue of the ex-gratia payment was a very complicated matter.  In such a situation, he said justice should favour the disadvantaged party – the MPs. “It is obvious that they will be sentenced after a new Parliament has been set up. They are former MPs covered by the laws of the country in terms of eligibility for benefits,” one of the seasoned attorneys said.

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