By Alec Lushaba - Editor | 2020-09-28
TODAY I want to address the Speaker of the House of Assembly Petros Mavimbela and the members of Parliament over the motion brought to the House by Hosea MP Mduduzi ‘Bacede’ Mabuza and seconded by Maseyisini MP Mduduzi ‘Small Joe’ Dlamini.
Here is his motion: “To move that the Hon. Minister of Justice and Constitutional Affairs (Pholile Shakantu), through the Elections and Boundaries Commission (EBC), disqualifies Hon. Member from Lobamba Lomdzala Inkhundla (Marwick Khumalo) on grounds set out here under. (a) Section 96 and 97 of the Constitution Act No. 001 of 2005 provides the mandatory qualification to stand for election of Member of Parliament and disqualification for such, among the qualification imposed under any law in force on Eswatini relating to general elections. This is the spirit of Section 97 (1) (e).
“(b) The Elections Act No.10 of 2013 is the law contemplated by Section 97 (1) (c) of the Constitution. Section 88 of the Elections Act applies to the Hon. Member in that he was charged with offence mentioned under the Prevention of Corruption Act No. 03 of 2006. (c) The mechanism specified under Section 88 is also counterproductive because the time limits specified under section 88 have long elapsed.”
The tone of the motion alone, based on the background of a divided House, which we have seen when it was dealing with POCA and the Cannabis Bill is bound to create problems and will make it difficult for the MPs to honestly engage on the motion and its general good to Emaswati.
Let me again put it up front, MP Marwick Khumalo, who is used and seen as the genesis of the motion is not in fact the problem, but an example of a bigger problem engulfing the country.
Any person who is arrested and made to appear before our courts of law is presumed to be innocent until proven guilty. That’s what our constitution states.
So you don’t then expect any person in MP Khumalo or the Hosea MP in his recent case to act otherwise, they are both not guilty of any crime or offence until our courts of law determines their case.
Let me further assume that our MPs are matured men and women who are not motivated by any other thing but to see the law being done justly. Then if my assumption is good, therefore, let’s assume Mabuza’s motion is defective on the aspect of directing Minister Shakantu to do something she is not empowered to do in law, let them say so.
But let’s get our feelings and motions out of the way and try to understand what is being presented before the House.
Before the House is Section 88 of the Elections Act (Criminal proceedings against a candidate or a person who intends to be a candidate) which states the following; “(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 12 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.”
The law in terms of the above Section and what needs to happen is clear and based on the presumption of innocence until proven guilty, if the accused is not interfering with proceedings it becomes also difficult to say what he or she must do. Maybe this is an area where MPs will need to develop guidelines on the part of the accused to be expected to do something to prove his or her innocence.
I am aware, based on Monday’s proceedings, that this motion has not been fully ventilated even by the mover to the point of understanding his stand point. But again, I want to borrow from Attorney General Sifiso Mashampu Khumalo, who when asked to state his legal advice very early into the motion being tabled, stated that probably there is fault with the motion calling for the minister of justice and constitutional affairs to engage on an illegal act of disqualifying someone.
He stated that it is a prerogative of the courts, since the matter is now before courts. The minister can only inquire as to what has happened with the cases because clearly the timeframe stated in Section 88 has long lapsed. Maybe there were reports that have been submitted but not furnished to the House by either the former minister or the chief justice.
So the basis of the motion has to be to enquire as to why the law has not been followed to the letter here, more especially because we are talking about a 2013 case.
But here is my panel-beating to the Bacede motion – the issue being raised is more than just a Marwick Khumalo vs Bacede motion. But it is the case which His Majesty King Mswati III has been trying to impress upon the judiciary for over 10 years, fighting corruption. The King has been very clear when it comes to dealing with bobhabuli. In fact, he is longing for a day when one case of bhabuli will hit the courts and the matter dealt with to the end, either bhabuli aphunyule or end up in jail.
The judiciary as headed by Chief Justice Bheki Maphalala behaves in the same way as that of his predecessor, Michael Ramodibedi.
This is what MP Mabuza’s motion should be calling for, not Marwick, but the entire operations and performance of our judiciary.
Khumalo’s case, despite being seven or years old has to date not been enrolled for trial. His is not the only case, remember Zombodze Emuva MP Titus Thwala’s case where he was accused of misappropriating funds at Moyeni High School? What happened to it, zinc!
So we don’t need to be excited at dealing with MP Khumalo but we need to look at the dysfunctional justice system. This motion by MP Bacede Mabuza needs to be panel-beated to deal with the essence of our problems, not just MP Khumalo.
My appeal to the Speaker and the mover of the motion is to call for Minister of Justice and Constitutional Affairs Shakantu or Prime Minister Ambrose Mandvulo Dlamini to seek the powers that be to institute a commission which will investigate, amongst many issues, the ills of our judiciary system.
The commission will discover how bad or corrupted our judiciary system has become. By so doing, Parliament will be doing justice to the country than pursuing narrow interest issues and will be acting within the law.
There is a lot not right with our courts and this is the time to deal with it. The chief justice is busy pointing fingers at those who question the judiciary and it is time he answers for the inefficiencies. It cannot be that the country is held at ransom by an opinion of the CJ when it comes to dealing with corruption. If he is not committed to the cause, it is time we got someone else who will not only carry the King’s mandate but give the country’s judiciary some confidence and credibility. At the moment it is at its lowest ebb or worse still in abyss. The country is being denied justice because the saying goes: ‘Justice delayed, is justice denied.’
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