Times Of Swaziland: Vote reversal is illegal - Lawyer

Vote reversal is illegal - Lawyer
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 WELCOME DLAMINI on 17/10/2012 00:00:00


MBABANE – Legally, the vote of no confidence passed on Cabinet by the House of
Assembly still stands and the subsequent vote reversing it does not count.
This is the legal interpretation of renowned and respected lawyers who, when
speaking to the Times yesterday, disclosed that there was no provision in the
Constitution for the reversal of a vote of no confidence.
On Monday, members of Parliament took eight-hours of debate to reverse the vote
of no confidence they passed on Cabinet on October 3, 2012.
The vote of no confidence was passed in accordance with Section 68 (5) of the
kingdom’s Constitution, but on Monday the Attorney General, Majahenkhaba
Dlamini, could not advise the House on the instrument that was being used in
reversing the decision.
"I have never heard of this. I do not know how the Constitution could be
overruled by Parliament Standing Orders," Advocate Lucas Maziya said in
reference to the fact that the reversal of the vote was not based on the
Constitution, but Standing Orders.
The advocate continued: "As I see it, the vote of no confidence still stands
because there is no instrument to reverse it. As it is, nothing has changed.
"On the strength of the vote of no confidence that was passed, it is not legal
for Cabinet to be in office."
Chairman of the Lawyers for Human Rights Swaziland, Mandla Mkhwanazi, opined
that the same argument which led to the vote being passed should also apply when
it is to be reversed.
"My view is that if it takes two to tango, it should also take two to un-tango.
By this I mean that since it took a three-fifths majority for the vote to be
passed, it should also take the same number of votes to reverse it," he said.
The House of Assembly has 65 members and 39 of them constitute the three-fifths
majority needed for a vote of no confidence to be passed.
However, while it took 42 MPs to vote in favour of the vote, there were,
however, only 32 legislators in the House when the vote was reversed on Monday.
Even then, the votes were not tallied, but Speaker Prince Guduza used the ‘Aye
or Nay’ voting principle to decide the reversal.
Regarding that principle, there is no physical vote count.
President of the Law Society of Swaziland, Titus Mlangeni, after first laughing
at the obtaining scenario, said the reversal was illegal.
"My view is that once you take such a resolution to pass a vote of no
confidence, it ends there. I do not think that, legally, they can reverse the
resolution they took. If there was a defect in the initial resolution, then they
can reverse it, but since there was none, then they cannot."
Mlangeni said the reversal by MPs had caused further confusion yet there was
already confusion created by Cabinet following the passing of the vote.
"For me, this (reversal) intensifies the confusion. I doubt that MPs can reverse
a binding decision. The Constitution doesn’t foresee that something like this
can happen, hence there is no provision for a reversal. What has happened now
will worsen the situation and cause more confusion."
He added: "Can Parliament reverse its resolutions. Such becomes a mockery. This
can happen in future where MPs pass a resolution and then reverse it. This is a
bad precedent. It shouldn’t be allowed to happen."
Influential MPs were not present
MBABANE – Members of Parliament who were influential in having the vote of no
confidence against Cabinet passed were not present during its reversal on
Monday.
These include the seasoned Lobamba Lomdzala MP Marwick Khumalo, Nkilongo’s
Trusty Gina, Ludzeludze’s Nonhlanhla Dlamini, Hhukwini’s Mkhululi Dlamini
and Matsanjeni South’s Qedusizi Ndlovu.
Others who were missing are Kubuta’s Charles Myeza, Chair of Chairs in
Mhlambanyatsi’s Petros Mavimbela, Ntondozi’s Peter Ngwenya and Mhlume’s
Siphiwe Kunene.
MPs Khumalo, Gina and Mkhululi were reportedly out of the country attending the
Pan Africa Parliament in South Africa.
MP Ndlovu said he was at home as he is currently undergoing treatment after
catching a bout of flu during his recent trip to Eastern Cape, South Africa.
Aggrieved MPs should go to court
MBABANE – Members of Parliament who are aggrieved by the reversal of the vote
of no confidence on Cabinet should approach the courts for redress.
Chairman of the Lawyers for Human Rights Swaziland (LHRS), Mandla Mkhwanazi,
pointed out that since the resolution to reverse the vote had already been
taken, it therefore, could not be wished away.
"My position on the first vote was that it stood until decided otherwise by the
courts. Cabinet should have gone to court for the matter to be decided. Even now
a resolution to reverse the vote has been taken by the House of Assembly, but
whoever is aggrieved should go to court to challenge its validity.
"Once a resolution is taken by Parliament, it stands until a neutral body like
the court decides otherwise. You cannot label the second vote invalid because
only the court can decide. Some MPs walked out yesterday (Monday) because they
were aggrieved. That should not be the end, but they should go to court to
challenge the reversal and point out the problems with it."
Advocate Lucas Maziya said the matter was first supposed to go to court when the
vote of no confidence was passed and the person taking it there should have been
Cabinet as the aggrieved party.
"The court could have determined the validity or invalidity of the vote. But I
do not think it would be invalid just because the Prime Minister or Attorney
General said so. After the vote of no confidence was passed, there was supposed
to be one of two outcomes; the matter should have gone to court for
determination or the King should have dissolved Cabinet. The word ‘shall’,
in the King dissolving Cabinet, should have stood."
Maziya said the court should now come to the nation’s rescue.
"It is a bit scary if Cabinet refuses to go to court. It is not for them to
determine whether they should stay in office or should go. The court should be
the one to decide on the vote," he said.
Titus Mlangeni, the President of the Law Society of Swaziland, said it was up to
other functionaries to take the next step regarding the issue of the vote.
"Our view is that this matter should go to court to end this uncertainty," he
said.