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ARE CABINET MINISTERS IN OFFICE ILLEGALLY?

22/07/2018 08:12:00 BY WELCOME DLAMINI

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MBABANE – There is divided legal opinion on the legality, or otherwise, of Cabinet ministers’ continued stay in office following the dissolution of Parliament.

On the one hand, there is a school of thought that believes the ministers’ term ended on June 30, 2018 when Parliament was dissolved.
On the other hand, there are those who hold that the ministers are constitutionally in office because their prolonged stay was pronounced at Sibaya - the highest policy and advisory council (Libandla) of the nation.

His Majesty King Mswati III, on June 20, at Ludzidzini Cattle Byre, announced that the 10th Parliament was being dissolved.
He said Cabinet ministers would, however, continue in office and look after government affairs until such a time when they would hand over everything to principal secretaries.

A senior legal expert said there was a problem with the ministers’ continued stay because it had no basis in law.
“This is because you do not become a minister if you are not a Member of Parliament (MP). So, if Parliament has been dissolved, it means your tenure as minister has also come to an end because you are a minister by virtue of being a Member of Parliament.”
The expert wondered how one could continue being a Cabinet minister after Parliament has been dissolved because that person has to be an MP first.

is constitution violated?
Section 68 (4) (c) provides that “the office of a minister shall become vacant where the minister ceases to be a Member of Parliament”.
He said not respecting this was a violation of the Constitution and the problem was that there were no longer legal practitioners who want to challenge such in court.

He said the whole Cabinet should have gone home after the Parliament dissolution and an individual be assigned to be acting prime minister to work with principal secretaries.

“That person should not be a Cabinet minister or an MP. But for the ministers to be allowed to continue is strange because there is no backing of such a decision in the Constitution. This is my opinion,” the expert stated and further observed: “For me, the ministers are in office unconstitutionally and unlawfully because there is no instrument backing their stay.”

He said before the Constitution came into force, His Majesty could allow ministers to continue after Parliament dissolution because he had the powers to do so.

“He had the powers to form a Council of Ministers through Legislative Procedure Decree, which was provided by the 1973 Decree that gave the King legislative powers. At least then the law backed such a decision and the ministers were even allowed to make laws in a caretaker capacity. But now there are no such powers because, according to the Constitution, the King can only legislate through Parliament,” he opined.

The expert quoted Section 106 of the Constitution, which states that subject to the provisions of the Constitution, the supreme legislative authority of Swaziland vests in the King-in- Parliament.
lawyer sees no problem with extended stay
Another senior attorney backed the expert’s views who also first noted that Cabinet ministers were appointed on the basis of them being MPs.
He said once the King dissolves Parliament in terms of Section 134 of the Constitution, then automatically Cabinet ministers also have to vacate office.
“On the face of this section, they, in my opinion, are not supposed to be in office once Parliament has been dissolved. If section 134 (1) (b) is read together with section 134 (6), then the Cabinet ministers should have vacated office by now. But maybe some people may interpret the Constitution differently from me,” the senior lawyer said.
Section 134 (1) (b) states that: “The King may at any time dissolve Parliament” and section 134 (6) says: “Where Parliament is dissolved in terms of subsection (1) (b), the members of Parliament shall be deemed to have vacated office on the day but one of the first meeting of the House after the general election”.
A different view that was offered by another senior lawyer is that there was no problem with the ministers’ extended stay because it was announced during Sibaya that they would continue and Parliament would be dissolved.
“So they are not in office unconstitutionally or illegally because it was a pronouncement from the King at Sibaya to all Swazis. Section 232 states that Sibaya is the supreme Parliament of all Swazis. That’s the provision that keeps them in office. They are not continuing out of their whim but it was the appointing authority that told them to do so,” the senior attorney said.
Section 232 (2) reads: “The Sibaya is the Swazi National Council constituted by Bantfwabenkhosi, the tikhulu of the realm and all adult citizens gathered at the official residence of the Ndlovukazi under the chairmanship of iNgwenyama who may delegate this function to any official.”
Section 232 (3) states: “Sibaya functions as the annual general meeting of the nation but may be convened at anytime to present the views of the nation on pressing and controversial national issues.”
The senior attorney added: “They (ministers) have powers to execute administrative duties as ministers but do not have powers to legislate as members of Parliament. As MPs, they have ceased to exist but as Cabinet ministers, they continue existing but with limited powers, unlike when Parliament was in place.”
But this was countered by another senior attorney who argued that when the king made this pronouncement, he had not convened an AGM but had called emaSwati to inform them that he was dissolving parliament.

extension has
no basis in law
He countered: “You can’t call an AGM where people don’t have a say on the issue. My understanding is that the people should have a say but this time it was just to tell them. An AGM should have an agenda and then a decision taken. But dissolution of Parliament is not even a matter of an AGM but is provided for in the constitution. Assuming the King extended the period of Cabinet ministers, the question is what powers he used when he did that because there is no clause where it talks about extension of period once Parliament is dissolved. This means the ministers’ extension in office has no basis in law. They should have gone home with the rest of the MPs.”
Attorney General Sifiso Khumalo sought to provide answers on the matter by stating that the Cabinet ministers were continuing in office “at the pleasure of Ingwenyama (His Majesty the King)”.
He said the King can exercise his Executive powers either directly or through Cabinet ministers in terms of the Constitution.
He referred to Section 64, which, in sub-section (3) states that “Subject to the provisions of this Constitution, the King may exercise the executive authority either directly or through the Cabinet or a minister.
“That’s why they are at the pleasure of the Ingwenyama; that’s why they can’t even make laws,” the AG said.
A senior member of the judiciary said even though he had not given this matter serious thought, the constitution could, be used to come to a decision.
“The constitution should not be violated with impunity. It’s true that the dissolution of Parliament has a bearing on the status of Cabinet ministers,” the senior member said.

system of governance not universal
He stated that the most worrying thing was that at this time, some of the ministers were making serious decisions that are cast in stone; that one cannot change.
“What then if they take major decisions that generally should be taken by Parliament? What happens if an affected person challenges the decision in court and that decision is nullified by the court? It does give problems because our system of governance is not universal and there are loopholes and we are still in the process of testing these in court. This is a matter that is of interest to the public,” the judicial expert said.
An example was made about the ongoing impasse involving the Minister of Housing and Urban Development Phiwayinkhosi Mendy Mabuza, Mbabane Council CEO Gideon Mhlongo and the councillors.
The minister has threatened to extend the contract of Mhlongo if the councillors fail to renew the CEO’s contract. Should the minister eventually take this decision, it could be challenged in court and the councillors could argue that the minister was in office illegally when he did this. Responding to this, the AG said this could be a matter for argument, but if it wasn’t for the King’s pleasure, the ministers should not be in office by now.
“It’s an arguable issue (that of ministers taking serious decisions) but I cannot pre-empt it because I’m the AG and in the event it comes up in future, it may demand my attention. But it’s a matter for argument,” Khumalo said.
He reminded that the ministers cannot take decisions of a huge magnitude because Parliament was not in place.
Khumalo also reminded that the present era was different from the past, before the advent of the constitution, when the Cabinet ministers, after dissolution of parliament, could make laws as a council of ministers.