COUNCIL OF CHIEFS CANNOT BE BYPASSED - XABA

MBABANE - “The council of chiefs is a major stakeholder in all policy formulation and statutory debate on any issue that tampers with customary law.”

Machawe Lindokuhle Xaba made this submission in his application, where he is challenging the constitutionality of the SODV Act. He told the court that the council of chiefs could not be bypassed and the resultant statute remained unlawful. According to the applicant (Xaba), the council was better placed to reflect on the views of the people from the chiefdoms pertaining to any matter under debate, which had the potential of altering a firm legal position of Swazi Law and Custom. He said this would help to make the law to be a product of the aspiration of the people and not repugnant.

Legislation

“This in another incident of representative democracy in legislation, more so because the normal stakeholder who designed and discussed the legislative Bills may not be representing and reflective of the aspiration of the people in the chiefdoms to whom the law impacts,” he argued. The applicant informed the court that he was  advised that there were several modifications, alterations and significant changes that the SODV Act had introduced into law and these included, but not limited to; the criminalisation of the custom of kwendzisa for girls below 18, limitation of sexual activity below the age of 18 and the introduction of redefinition of abduction. “I have a clear right to be tried and convicted under a law that was lawfully promulgated in full compliance with Section 115 of the Constitution. The section is not mere adjective law which is insignificant and optional to the Senate president and the Speaker to bypass as they wish,” he argued.

Argued

He told the court that the decision of the Senate president and the Speaker of omitting to refer the SODV Bill to the council of chiefs stood to be set aside. Xaba submitted that the magnitude of the irregularity allegedly caused by the omission to refer the Bill to the council of chiefs was so grave as to vitiate the entire statute. “For the aforegoing, I have been verily advised that the statute I was convicted under is unlawful and irregular. I am serving an unlawful sentence of 15 years imprisonment imposed by Acting Principal Magistrate Zwane purporting to be acting under a law that was never discussed by the people but imposed by the Legislature through the Senate president and the Speaker,” he argued. The applicant concluded his submisisons by informing the court that he was entitled to legal costs of his application.  He alleged that the respondents had shown complete disregard of the Constitution and due to that, he was entitled to legal costs as he had been literally pushed to the doorstep of the court by the high rate of the ineptitude.

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