Home | News | BACEDE, MTHANDENI’S NON-SENTENCING SPARKS E1.1M PAYOUT DEBATE

BACEDE, MTHANDENI’S NON-SENTENCING SPARKS E1.1M PAYOUT DEBATE

06/08/2023 16:11:00 Mfanukhona Nkambule

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MBABANE – Judge Mumcy Dlamini’s two-month wait to decide on sentences for two jailed politicians has created a debate over their eligibility to certain benefits.

It may be argued that Mthandeni Dube and Mduduzi Bacede Mabuza served their full term as MPs. This is because their sentence will be ordered after the dissolution of Parliament. His Majesty King Mswati III dissolved Parliament on July 11, 2023. Due to the prevailing situation, they may be eligible to an ex-gratia allowance of E588 000 apiece; translating to a combined payment, of E1 176 000. The above figures are derived from their basic salary of E49 000 per month. The ex-gratia is paid as a once-off payment equal to a year basic salary before taxation. This then translates to the yearly basic salary of E588 000. It is paid to former MPs to adjust to non-parliamentary life.

They will also be entitled to a one-third payment of their pension estimated at over E400 000. The one-third payout is tax free but the remaining two-thirds shall be subjected to tax.
The two incarcerated MPs are still on government payroll, sources said. An ex-gratia is a favour, not compelled by legal right. It is now a legal benefit because government included it in the conditions of service for parliamentarians. However, it is the discretion of employers to consider an ex-gratia payment as a benefit for workers. Other employers around the world pay ex-gratia allowances to non-striking employees. In Eswatini, the only time an ex-gratia payment is forfeited by the former parliamentarians is when they have been ‘dismissed’ or ‘removed’ from office because of ‘misconduct or incompetence’.

The mind boggling question could be; ‘were the two outgoing MPs of Hosea and Ngwemphisi ever removed or dismissed from Parliament?’ When can they be removed and who can remove them? Reads Article 4.6.7 of Finance Circular No.2 of 2013: “Should the parliamentarian be dismissed or removed from office, due to misconduct or incompetence, the ex-gratia payment will be forfeited. The ex-gratia will be paid as once-off payment equal to 12 months (one year) basic salary before taxation for all parliamentarians.” Due to the fact that they are yet to be sentenced, following their conviction, there was to be no instrument removing or dismissing them from Parliament. Without the sentencing, it has been established that their seats only became vacant after the dissolution of Parliament.

Their fate also begs a constitutional question as Section 99 of the Constitution of the Kingdom of Eswatini provides that a parliamentarian ceases to be a member when he has been sentenced by a court in any country, to death or imprisonment (by whatever name called) for a term of or exceeding six months, including a suspended sentence. Reads Section 99 (1): “Where a member of the Senate or the House is for an offence which is a criminal offence in Swaziland sentenced by a court in any country to death or imprisonment (by whatever name called) for a term of or exceeding six months, including a suspended sentence, that member shall forthwith cease to be such a member and the seat of that member shall become vacant at the expiration of a period of sixty days from date of that sentence.”

Section 99 (1) does not apply where before the expiration of two months, the parliamentarians receive a free pardon or the conviction is set aside or the sentence is reduced to a term of less than six months or a punishment other than imprisonment is substituted. According to the Constitution, where the sentence of the members of Parliament has been reduced to a term less than six months but more than two months, they shall be deemed to have been suspended by the House for the duration of the effective term of imprisonment, unless the concerned chamber resolves otherwise. Mabuza and Dube were convicted on June 1, 2023 after their arrest on July 25, 2021. Their trial commenced in November 2021. They were denied bail several times.

The seat for exiled former Siphofaneni MP and now President of the Swaziland Liberation Movement (SWALIMO) Mduduzi ‘Gawuzela’ Simelane became vacant on the strength of Section 98 (1) (c) of the Constitution. Section 98 (1) reads: “The seat of a senator or of a member of the House shall become vacant where the holder is absent from 20 sittings of the chamber, during any meeting of that chamber without the permission in writing of the presiding officer and is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges.” He was not eligible for the ex-gratia payment because this is basically a facility for former parliamentarians to adjust to non-parliamentary life as dictated in the Finance Circular.

Neal Rijkenberg, the Minister of Finance, after consultations, said the circular was clear, but the concern was, who has to determine the misconduct as such mandate falls outside the ambit of the Ministry of Finance. He said those who were responsible for the code of conduct for MPs could best answer the question. Attorney General (AG) Sifiso Khumalo, also an ex-officio member of Parliament, said gratuity was paid at the end of term as per the Circular.

argument

“You recall you once said these are outgoing MPs because they are still remunerated - you were partly correct, the argument is that in principle the term has ended but in reality the term ends on the last day of remuneration,” the AG said. Technically, he said it was not yet a factor that Parliament was dissolved and they did not know if sentencing would be ordered before or after the last remuneration date. “We can then have an honest discussion in my view,” Khumalo said. He said an ex-gratia is discretionary upon the employer, not obligatory. The last remuneration date may be end of next month, sources said. Clerk-to-Parliament Benedict Xaba said the question on the matter was a tricky one. However, he said, as Parliament, after getting the court judgment, would engage with the office of the AG to get guidance on how to move forward. A private attorney said the issue of the ex-gratia payment was a very complicated matter. In such a situation, he said justice should favour the disadvantaged party – the MPs. “Sentencing will occur after Parliament has been dissolved. That they are being remunerated after the dissolution of Parliament is a technical issue that attempts to fulfil government’s contract with the MPs,” the private attorney said.

In a 147-page judgement, the judge found them guilty of inciting violence during the 2021 civil unrest and murder. The murder charge emanated from the death of two men who were run over by a motor vehicle that belonged to Sincephetelo Motor Vehicle Accidents Fund (SMVA ) that hit seven people at Nkwalini at an illegal ‘roadblock’ ,where some residents stopped vehicles and demanded money. During this period, illegal roadblocks were mounted in various parts of the country. The Crown led 65 witnesses to prove its case against the incarcerated MPs.

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