By Sandile Nkambule | 2018-10-11
It’s sweet victory for all losers.
Aspiring MPs who lost in the elections race in both the primary and secondary stages are now free to lobby for Senate seats.
This came about after former Lobamba Member of Parliament (MP) Michael Vusane Masilela successfully challenged the Elections and Boundaries Commission (EBC) on certain section of the Elections Act.
The Act barred election losers to lobby and contest for the 10 Senate seats that are filled by elected MPs on their first sitting, which is today.
The High Court full bench that heard Masilela’s urgent application handed down its judgment yesterday where it ordered that the application by the former MP succeeds.
Presiding Judge Mumcy Dlamini, who was sitting with Justices Mzwandile Fakudze and Maxine LaNgwenya, further issued no order as to costs of the application.
The High Court full bench said reasons for the judgement shall follow at a later date. This effectively means that those who lost in the elections and are interested in scoring seats in Senate are free to lobby the elected MPs to win their votes.
MPs elect 10 senators that are joined by a set of 20 to be appointed by His Majesty King Mswati III. The king has already appointed 10 MPs for the House of Assembly.
Masilela had taken EBC Chairman Chief Gija to court, challenging the Senate Elections Act of 2013.
He was represented by lawyer Zonke Magagula while Chief Gija and the Elections and Boundaries Commission (EBC) were represented by Mbuso Dlamini from the Attorney General’s Chambers.
Masilela, who crashed out in the primary elections held at Nkhanini under Lobamba Inkhundla, was seeking a declaratory order of court that Section 5(3) of the Senate Elections Act No.7 of 2013 is inconsistent with Section 97 of the Constitution of the Kingdom of Eswatini Act No 1 of 2005.
Section 5(3) of the Senate Elections Act of 2013 states that a person who is an unsuccessful candidate in the general elections shall not be considered for nomination as a senator.
Masilela was also seeking an order striking down Section 5 (3) of the Senate Act, arguing that it is inconsistent with the Constitution and granting costs against the respondents.
The EBC chairman had been cited as the first respondent in the matter which was argued by both parties on Tuesday.
Masilela argued that he is Liswati who duly registered as a voter under Nkhanini Umphakatsi at Lobamba Inkhundla and having registered he qualified to be nominated and elected as a senator or member of the House of Parliament.
In particular, he submitted that he qualifies because in terms of Section 96 of the constitution, he meets the criteria to be elected and or nominated for either house having also paid his taxes. He said during the nominations stage on July 28, he was nominated for the position of MP at Nkhanini and satisfied the requirements and his nomination to stand for the primary elections was confirmed.
“I wish to point out that nomination is voluntary and not solicited. The primary elections were held and I was one of the unsuccessful candidates as I came second with 554 votes with the successful candidate attaining 561 votes,” he submitted.
Having been unsuccessful, Masilela stated in his papers that he turned his focus to contesting or making himself available for nomination and possible election into Senate arguing that he duly qualifies for nomination into that chamber.
Masilela submitted that the constitution of the Kingdom of Eswatini gives an exhaustive list of qualities that disqualifies a person from being nominated or elected as a member of the Senate.
The former MP stated that he has not been declared insolvent, of unsound mind, under sentence of death or imprisonment for more than six months for any criminal offence or any other qualities or lack of as mentioned in the section.
He had also submitted that he has been verily advised that the extent of Section 5(3) are inconsistent with provisions of Section 96 and 97 of the Constitution and that the court is seized with the jurisdiction to strike the section down, such that it becomes of no force or effect.
He submitted that he is desirous of making himself available for nomination as a member of Senate and that his desire to serve the nation in this regard is hampered by the provisions of Section 5(3) of the Act of 2013, in terms of the Constitution, Members of the new Parliament are enjoined to commence the exercise of nominations or election of members of the Senate in their first sitting.
The judgement would bring sad memories to the losers of the 2013 elections who could not even attempt to lobby for Senate seats. They had to swallow the bitter pill of losing.
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