Monday 2020-09-28

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MOTION TO OUST MARWICK REJECTED

By SIFISO DLAMINI | 2020-09-17

A motion without notice to oust Lobamba Lomdzala MP Marwick Khumalo was yesterday rejected by the House of Assembly.

A majority of parliamentarians voted against the motion moved by Hosea MP Mduduzi Bacede Mabuza and seconded by Maseyisini MP Mduduzi ‘Small Joe’ Dlamini.

Mabuza had moved that Minister of Justice and Constitutional Affairs Pholile Shakantu, through the Elections and Boundaries Commission (EBC), disqualifies MP Khumalo. The grounds set out were that Sections 96 and 97 of the Constitution provide the mandatory qualification to stand for election of members of parliament and the disqualification of such.   Section 97(1)(e) states: “(1) Notwithstanding the provisions of section 96, a person does not qualify to be appointed, elected or nominated as the case may be, a Senator or member of the House if that person — is otherwise disqualified by law in force in Swaziland relating to general elections.”

Law

Also, the Elections Act of 2013 is the law contemplated by Section 97 (1)(e) of the Constitution. Mabuza said Section 88 of the Elections Act of 2013 applies to MP Khumalo in that in 2018 while vying for elections, he was charged with an offence mentioned under the Prevention of CorruptionAct No.3 of 2006. Section 88 of the Elections  Act states: “(1) Where a candidate or a person who intends to be a candidate for an election has been charged with an offence mentioned under the Prevention of Corruption  Act, 2006, Prevention of Organised Crime Act, Sexual Offences and Domestic Violence Act and the fourth and fifth schedules of the Criminal Procedure and Evidence Act No.67 of 1938, the Court shall ensure that the proceedings of that matter are expedited and dealt with as a matter of urgency.

“(2) Where, however, the trial of a person charged in terms of this section is not completed within six months the prosecutor shall submit to the Minister a report, signed by the Director of Public Prosecutions and countersigned by the Registrar of the High Court, explaining the reason for the delay.

“(3) Where the trial is still not completed after nine months and a subsequent report by the Judge presiding over the case reveals that the delay in finalising the proceedings is attributable to the accused, the accused shall at the end of twelve months, if the trial is still not completed, be disqualified from the position in which the accused was elected.

(4) Through practice directives the Chief Justice shall develop a process to ensure compliance with this section.

(5) The provisions of this section shall also apply in the case of a person nominated, elected or appointed under this Act, Senate (Elections) Act, 2013 the provisions of sections 94 and 95 of the Constitution.”

MP Mabuza said the mechanisms specified under Section 88 were also counterproductive because the time limit specified under the section had long lapsed.

  He said the act provides that a case involving a candidate should be treated as a matter of urgency and be completed within a period of 12 months, failing which the candidate would be disqualified. MP Mabuza stated the act made it mandatory that the MP be disqualified. The minister of justice and EBC were called to implement the mandatory provisions of the act without favour or partiality. 

The minister was further directed to carry out the above within 48 hours from adoption of the motion.

Speaker Petros Mavimbela noted that since it was a motion without notice, the House had to decide whether it would be considered and debated by vote.

  The majority of the votes were in favour of rejecting the motion with 36 voting against while seven MPs voted for the debate of the motion.

Worth noting was that this did not necessarily mean the end of the matter as the motion is not completely wiped out. 

The activities that occurred yesterday, means that the House only deferred the manner in which the matter was introduced as it was moved as a motion without notice that the House had to vote and determine if it was debated or not. This meant that the motion could still be moved and included in the order paper for the next sitting as a private motion, which would automatically be debated by the House following which it would be adopted or rejected.

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