Times Of Swaziland: MP LOSERS ELIGIBLE FOR SENATE – COURT

MP LOSERS ELIGIBLE FOR SENATE – COURT
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BY SIBONGILE SUKATI AND KWANELE DLAMINI on 11/10/2018 05:35:00


MBABANE – Doors are open! All aspiring Members of Parliament (MPs) who lost in
the national elections have until 2pm today to lobby for a Senate seat.
This follows the landmark ruling, which was yesterday issued by a full bench
comprising Judge Mumcy Dlamini, sitting with Judge Maxine Langwenya and Judge
Mzwandile Fakudze.
The court heard former Lobamba Member of Parliament Michael Masilela’s
application, challenging the constitutionality of Section 5(3) of the Senate
(Elections) Act No.7 of 2013 yesterday, and found that this section of the Act
that Masilela challenged was indeed unconstitutional.
The Act states that a person who is an unsuccessful candidate in the general
elections shall not be considered for nomination as a senator.
When Masilela lost in the Primary Elections, his ambition to remain a
parliamentarian remained alive. The only stumbling block was the Senate Act and
he filed an urgent application at the High Court.
He wanted the court to strike out the section of the Act, which prohibits losing
MP candidates from being considered for seats in Senate.
Masilela, who is also a businessman, was represented by Zonke Magagula of Zonke
Magagula and Company.
“Having heard counsel for the parties, applicant’s (Masilela) application
succeeds with no order as to costs,” reads the order.
Judge Dlamini said reasons for the ruling would follow in due course.
In his application, Masilela of Nkhanini argued that Section 5(3) of the Act was
inconsistent with Section 97 of the Constitution.
He wanted the court to strike down this subsection of the Act due to being
inconsistent with Section 97 of the Constitution.
Masilela was nominated for the position of MP at Nkhanini Royal Kraal, having
satisfied all requirements to stand for the Primary Elections.
However, during the Primary Elections, he was unsuccessful and he came second
with 554 votes. The successful candidate obtained 561 votes. The former MP
informed the court that he qualified for nomination into Senate because the
requirements for such a qualification into that position were almost the same as
those of an MP. Masilela submitted that Section 97 of the Constitution gives a
list of qualities that disqualify a person from being nominated or elected into
Senate.
Disqualification
The conditions for disqualification include being insolvent, under sentence of
death or imprisonment of more than six months and not being eligible to be a
voter, among other things.
Masilela submitted that he had not been declared insolvent, unsound mind, under
sentence of death or been imprisoned for more than six months.  He said Section
5(3) of the Senate (Elections) Act sought to add another ground for
disqualification from being eligible for a seat in Senate.
Masilela said it was not mentioned in Section 97 of the Constitution that a
person who lost in the Primary Elections did not qualify for nomination into
Senate.
“I am advised and verily believe that the provisions of Section 5 are
inconsistent with the provisions of Section 96 and 97 of the Constitution,”
said Masilela.
The businessman informed the court that his right to participate in the
elections as a voter or candidate was guaranteed by the Constitution.
In his heads of argument, the Elections and Boundaries (EBC) Chairman, Chief
Gija, said Masilela ought to have identified the anomalies in the legislation
and moved a motion to amend them timeously.
“It is common cause and knowledge that he underwent the same procedure of
having to nominate prospective senators using the same piece of legislation that
is being contended hereon,” the chairman submitted.
He also said the section of the Senate Act Masilela contested was an instrument
used by all elected MPs to canvass, nominate or even elect senators. Chief Gija
submitted that Masilela, at the time, was one of those who knew and applied the
provision of the Act.
According to Chief Gija, Masilela knew five years in advance to rectify the
anomaly, while he was still in office if he wished to one day be nominated as a
senator.
“A whopping four years elapsed since he became aware of Section 5(3) of the
Senate Elections Act. The applicant advanced no explanation why it took him so
long before he could approach the court for relief. The applicant cannot now
move into high gear and expect the court and the other litigants to adjust to
his motion,” said the chief.
The chief argued that Masilela was not only an MP but also the chairperson of
the Justice Portfolio Committee.
According to Chief Gija, Masilela failed to establish that he had a direct
interest in the matter and failed to demonstrate that he was a person aggrieved.
He further submitted that Masilela had not suffered any prejudice as the Senate
Act had not been of any consequence to him.
“He has failed to demonstrate in his papers that he will suffer any pecuniary
loss or any form of loss as a result of the inconsistency. In any event, there
is no guarantee that he will even be elected as a senator,” added Chief Gija.
He informed the court that since the former MP wanted the court to strike out a
section of the Senate Act, he does not have legislative powers or any role in
the election of Senators.