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Swazi
NGOs challenge elections commission
The Media Institute of Southern Africa (MISA) Swaziland chapter,
leading a coalition of concerned civic organizations, has filed
an urgent application at the High Court of Swaziland challenging
the legality of the recently appointed Elections and Boundaries
Commission (EBC) which has been tasked the run the country's
forthcoming parliamentary elections to held later this year.
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MISA
Swaziland is the first applicant in the matter and along with
the rest of the concerned NGOs believes the EBC, recently hand-picked
by the King, is not constitutionally constituted, something
which they believe will compromise the integrity of the parliamentary
elections.
In papers before court, the MISA and the concerned NGOs argue
that the Constitution provides that members of the EBC should
either be legal practitioners with enough experience as high
court judges or have equivalent experience and demonstrate
competence. They believe the commissioners do not meet these
qualifications.
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The chairperson of the commission is a local Chief who has
spent his working life as an electrical engineer with the Swazi
Water Services. Its other members include a lecturer in languages,
a rural psychologist and an agricultural economist. The one
member nominated that may have sufficient, but not necessarily
relevant, legal qualifications is the Deputy Attorney General
who is disqualified under the constitution since he is a public
servant in the employ of the government. All of the nominated
can show close, clear and direct links to either the government
of the day or the traditional authorities that support the
king and the chiefs. In each and every respect their independence,
and appearance of independence, are compromised to the extent
that they are fatally flawed.
Competence
Their backgrounds demonstrate no working knowledge of elections
or electoral law. This is borne out in practice, already in
the much less technically complicated issue of voter registration
we have seen widows excluded from registration because of the
fact that they are widows and under Swazi tradition not welcome
in the chief's home where the registration was taking place.
We have also seen the exclusion from registration of a person
without arms for the reason that he is unable to provide a
thumbprint by way of identification. Most worrying of all is
the ability of voters to choose which constituency they want
to vote in. This is so open to abuse by the unscrupulous as
to put the whole of the voter registration into question. It
is a small step from a voter choosing which constituency to
vote in, to a candidate gerrymandering the voters lists with
friends, colleagues, persuasion, bribery, bullying and threats.
It is not a recognisable democratic electoral process when
the candidates choose the electorate. A relevantly experienced
and competent elections management body would have foreseen
many, if not all, of these difficulties.
Relevant Legislation
The purported Commission's remit is to oversee and supervise
elections under legislation that has been enacted in parliament.
However, this round of elections has seen the Commission ignore
existing statutes, re-invent voter registration requirements,
pass summary judgement on important constitutional matters
that are well beyond its remit or competence such as on the
meaning of freedom of speech (you may not campaign or canvass
for elected positions until they say you can) and the freedom
of assembly (freedom of assembly applies to organisations such
as football teams not political parties). It seems that this
body is taking the notion of independence to mean independence
from adherence to the law rather than independence from political
influence.
Police Harassment
Police Officers acting on behalf of the state have harassed
and threatened representatives of the Coalition who were providing
civic and voters' education. It is in protecting the rights
of the Coalition to act and in further defending the rights
of those unfairly excluded from Voter education that we take
this case.
Political Parties Banned – Parliament does not form Government
Swaziland has a new constitution from 2005 and these are the
first elections to be held under this new order. Under the
constitution these elections are for individual parliamentarians – political
parties remain banned. These individuals will not go on to
form a government as Africa's last absolute Monarch, King Mswati
III, gets to appoint 30% of parliamentarians and to choose
the Prime Minister and Cabinet only half of whom must be elected.
We contend that the Constitution is fundamentally flawed in
its inception, development and execution but while it remains
on the statute books it is the law. The rights found in it
must be protected and the Coalition, its members and broader
civil society will defend each and every encroachment on these
rights by the government and traditional authorities either
through acts of commission or omission, through deliberate
choices or negligent mismanagement.
International Comparisons
We have already seen the democratic catastrophes that arise
in countries such as Zimbabwe and Kenya where the independence
of the electoral commissions were compromised. While we do
not see those scenarios as an immediate likelihood, we will
not allow the same systems of partial and biased appointments
to be established without a challenge. To fall so badly at
the first hurdle gives us no confidence in the government's
genuine intentions to promote a culture of respect for the
rule of law, democracy and human rights. Which is why the Coalition
has, with reluctance, been forced to issue this writ."
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