By Sandile Nkambule | 2018-05-26
In an unprecedented move and with the elections registration process having just begun, the Swaziland Democratic Party (SWADEPA) has taken the Elections and Boundaries Commission (EBC) to court where it is seeking an order interdicting the EBC from allowing them vote as a political party.
According to a notice of motion in papers filed by SWADEPA at the High Court yesterday, they want its party members to be allowed to canvass for and recieve the endorsement of any political party during the elections.
Furthermore, they are also seeking an order interdicting the EBC, prime minister, minister for justice and other respondents from allowing its members who have registered for the elections publicly associated themselves with any political party by wearing, displaying its colours, symbols or slogans.
Cited in the application as applicants is the Secretary General Mbongiseni Cyprian Shabangu as the first, SWADEPA as the second and Sanelisiwe Tababe Dlamini as the third.
The respondets in the matter is the EBC as the first, the prime minister as the scond, justice minister as the third, minister for home affirs as the fourth, minister for tinkhundla administration and Development as the fifth, national commissioner of police as the sixth, Umbutfo Swaziland Defence Force commander as the seventh, the principal secretary in the ministry of defence as the eighth and the attorney general as the last respondent.
According to the notice of motion, the application will be made on behalf of the applicants before court on Friday July 20, 2018 as they also seek an order interdicting the respondents from preventing the third applicant who has already registered for the elections and any other member who chose to run as candidates for elections to the House of Assembly in canvassing for votes from stating publicly and motivating their social, economic, political and cultural beliefs, onion ands convictions.
According to Shabangu in his affidavit, he is a registered voter in the Mtsambama Inkhundla after having registered on May 17, 2018.
He submitted that he brings the present application in three capacities, first in his personal capacity as an individual who is eligible to vote in the elections to be held later this year, secondly as an individual who is eligible to run as a candidate and thirdly, in his capacity as a member and office bearer of a political party representing all members of SWADEPA.
He submitted that SWADEPA brings the application on behalf of its members who are eligible to vote in the elections and those who intend to run as candidates.
The third respondent, according to Shabangu, is a resident of Zandondo and a registered voter under Mandlangempisi Inkhundla and a member of SWADEPA’s Women League and brings the application in the same three capacities.
He stated that the second to the eighth respondents are cited for their interest in the matter while the attorney general, who is the last respondent, is cited in his capacity as the official legal representative of government.
At its core, Shabangu alleged that the application concerns the right of freedom of association as entrenched in section 25 of the Constitution of the Kingdom of Eswatini, in particular the right to associate freely with other persons for the protection of the interest of that person.
Citing a case of Jan Sithole and others vs Government of Eswatini, Shabangu submitted that the Supreme Court held that the right to freedom of asociation contained in section 25 of the Constitution includes the right to form and join political parties.
According to Shabangu, in a letter addressed to EBC Chaiperson Chief Gija in April, SWADEPA and the Ngwane Liberatory Congress (NNLC) sought clarity regarding the nature and extent of political parties’ participation in the electoral process, in particular in respect of key elections related activities.
He stated that given the imminent disolution of Parliament and announcement of an election date, the EBC requested to respond to the letter within 10 days.
“In his reponse on April 27, Chief Gija avoided engaging substantively with all but a single sub-paragraph that political parties are entitled to engage in a range of electoral processes should they so choose such as conducting a nationwide campaign that is not directly linked to any particular candidate for election,” Shabangu submitted.
He further submitted that in respect of the period between primary and secondary elections, the EBC appears to recognise that there is no bar to political parties campaigning for particular candidates arguing that in other words these parties may publicly identify and express support for their members who are running for public office.
The EBC is yet to respond to the notice of motion filed by Shabangu and SWADEPA.
Voters, political parties left in the dark by EBC – SWADEPA
n Secretary General says response given by Chief Gija is unfortunate as voters, political parties are in the dark in respect of election related process
According to Shabangu in his affidavit, the response given to them by Chairman of the EBC leaves voters and political parties in the dark in as far as election related processes are concerned.
The secretary general submitted that it is unfortunate that the response by Chief Gija has left them clueless in this aspect despite that the EBC plays a central role in the administration of electoral legislation, in particular the Elections Act and the Elections Expenses Act.
He submitted that without clarity on these issues, voters and candidates for election and political parties will not be able to enjoy the full benefit of their constitutional rights.
“On May 11, the EBC announced that registration for the 2018 elections will run from May 13 to June 17, 2018 while His Majesty the King is yet to announce the date of the elections which is expected to be sometime in September. Accordingly, we bring this application on the basis that our rights of association and expression will be contravened in the 2018 elections in the absence of the relief sought from this court,” Shabangu submitted.
He further submitted that subject to limited exceptions, there appears to be no barriers to the full and active participation of political parties in electoral processes and that the EBC’s failure to confirm this in this the case amounts to an abrogration Emaswati.
Adding, Shabangu submitted that the EBC appears to recognise that in respect of the period between primary and secondary elections, there is no bar to political parties campaigning for particular candidates alleging that the EBC’s response does not provide clarity in respect of any of the election related processes.
He mentioned that in 2013, candidates like the current Manzini North Member of Parliament Jan Sithole, who is the president of SWADEPA, did not indicate that they were members of the party because the EBC had made it clear that this was not permitted adding that it was only when SWADEPA members who are MPs introduced themselve to the King at Lozitha Palace that they identified themselves as members of SWADEPA.
He alleged that it is accordingly apparent that govenment has officially indicated that it is in the process of moving towards allowing political parties to contest elections, but it is not clear how far the process has advanced.
Candidates’ fearful articulation of political
views led to application – Shabangu
The secretary general of SWADEPA also submitted that fearful articulation of political views by election candidates has led to the filing of the present application in court.
Shabangu submitted that the failure by the EBC to clarify the role of political parties may play during the 2018 elections in a context in which candidates for election are fearful of articulating their political views and programmes.
He submitted that the application will serve two important purposes, which he alleged are that the respondents will state clearly their views on the extent of the rights in issue noting that this will be helpful in that it will clarify the extent to which candidates can assert their constituional rights and in particular that of association and expression without facing arrest or prosecution.
Secondly, Shabangu alleged that more significantly it will authoritatively define the extent of the relevant rights in ruling which is binding on the EBC and other government agencies for purposes of both the election which will be held this year and future elections.
“This is critical for all people of Eswatini and the effective functioning election processes, until these issues have been authoritatively determined, the people of Eswatini will be denied the full enjoyment and benefit of their constitutional rights,” Shabangu submitted.
He stated that the relief sought in the notice of motion should be viewed as it seeks orders defining the range of constitutionally protected activities that political parties are entitled to engage in, but more broadly than the context of seeking election to public office.
He submitted that given the importance of issues raised in the notice of motion, the applicants recognise that they are unlikely to be finally determined prior to the commencement of campaigning for the 2018 election, adding that it is for that reason that the applicants have sought an urgent interim interdict so as to ensure that the rights of registered voters, political parties and candidates are protected pending the final determination of the declaratory relief sought in the notice of motion.
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