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START INMATES PRIMARY ELECTIONS VOTING AFRESH – MABHANISI

23/09/2023 06:51:00 Kwanele Dlamini

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MBABANE – The much-talked about inmates’ votes during the counting of votes in the primary elections have seen former MP Sibusiso Mabhanisi Dlamini running to the High Court.

Mabhanisi, who lost to Sifiso Shongwe, the son of the incarcerated Sipho Shongwe, at Kwaluseni, approached the court with urgency for an order directing that the primary elections special voting exercise for inmates be started afresh. Mabhanisi also wants the court to declare the counting of special votes for inmates and announcement of the results to be in contravention of Section 62, 63(1), 64, 66 and 68 of the Elections Act, 2013.

The former Member of Parliament (MP) also prayed for the reviewing and setting aside of the results of the special voting for inmates due to the allegedly flawed vote counting process. Mabhanisi is the first applicant in the matter. Jabulani Nkambule and Dudu Zwane, who were both candidates for indvuna yenkhundla, are the second and third applicants, respectively. The trio wants to be allowed to participate as candidates in the secondary elections.

There will be special voting on Tuesday and the secondary elections will be held on Friday, September 29, 2023.
Respondents in the matter are Purine Bhembe, Mncedisi Dladla, Fundie Dlamini, Siphiwo Dlamini and Thabo Hlanze, Bongani Hlophe, Khazi Mkhwanazi, Ncamsile Mthethwa, Khayalethu Ndlangamandla and Zanele Nxumalo.

Others are Bhekisile Shongwe, Sifiso Shongwe, Sabelo Yende, Zwelibanzi Dladla, Khanyisile Dlamini, Mthunzi Dlamini, Michael Mndzebele Nhlanhla Thwala, Zwane Sifiso, Mcolisi Dlamini and Bheki Magongo. The Elections and Boundaries Commission (EBC) and the attorney general (AG) are the 22nd and 23rd respondents, respectively. The applicants are represented by Sivesonkhe Ngwenya of Sivesonkhe Attorneys, while Crown Counsel Sibongikhosi Dlamini represents the EBC.

In the founding affidavit, Mabhanisi informed the court that the EBC announced and commenced the 2023 general elections for bucopho, indvuna yenkhundla and MP in the various tinkhundla centres. He said together with the other respondents, they were nominated as candidates for the position of MP under Kwaluseni Inkhundla, while Nkambule and Zwane were nominated for the position of indvuna yenkhundla under the same constituency.

The EBC, according to Mabhanisi, arranged and conducted a special voting exercise for certain groups, which included inmates (both trial-awaiting and convicts). They voted during the special voting on August 22, 2023.
The former MP informed the court that in the evening of the same day, at Divine Healing Ministries International Hall, the counting of the special vote results commenced in the presence of all nominees and/or their agents.

He said this was done through the opening of the seals in the ballot boxes and each vote taken out, shown to those present and counted. “However, the votes pertaining to the Correctional facilities were not produced and when we queried and or challenged this, we were advised that we will get them in due course and we should go home.

Results

“The said exercise was conducted by both the presiding officer and the returning officer. On August 26, 2023, the EBC conducted the election in the normal and/or ordinary manner and after completion of same, the ballot papers were opened in the presence of all nominees and/or their agents and nobody challenged the same. We then questioned both the presiding officer and the returning officer about the results of the Correctional facilities special voting exercise and we were only shown the results thereof on a piece of handwritten paper and the opening of the ballot boxes and counting thereof was never done in our presence,” the outgoing MP alleged.

He said, together with Zwane and Nkambule, they were advised and believed that the alleged failure by the presiding officer and returning officer to produce the said Correctional facilities special voting ballot boxes and the counting of those votes was in contravention of elections laws. He submitted that Section 62 of the Elections Act, 2013, as read together with Sections 63(1), 64, 66 and 68 of the Act, provide for, inter alia, the counting of votes, presence of candidates and/or their agents and declaration of results.

“The applicants submit that the failure by the presiding officer and the returning officer to comply with the above sections was in contravention thereof and as such the said results are liable to being set aside and that special voting exercise be started de novo (afresh) as it is now tainted and in contravention of the constitutional provision, which provides that elections should be conducted in a free and fair manner (Section 90(7) of the Constitution).

According to Mabhanisi, on August 28, 2023, which was two days after the announcement of the results, he wrote and submitted a letter of complaint addressed to the chairperson of the EBC. He said he was advised to fill in, and submit, an elections complaint form, which he duly did on the same day. “I submit that from time to time thereafter I would visit the EBC’s offices whereat I would be attended by its officer, one Mbonisi Bhembe, who would inform me that they are working on my matter and surprisingly to date I have not received any response from the EBC, hence the present application.

“I submit that at no stage did I ever sit on my laurels in pursuit of the actioning of my complaint and it’s the failure by the EBC that has made me seek redress from the above honourable court, which I had tried by all means to avoid. If we are not allowed to participate in the said elections pending finalisation of the, matter we will suffer great prejudice and/or irreparable harm because by the time the matter is finalised, if it were to take its normal course, by that time the relief we are seeking would be academic,” Mabhanisi informed the court.

Complaint

The EBC is yet to file an answering affidavit. Judge Justice Mavuso heard arguments on points of law and will issue a ruling on Monday. The matter is yet to be argued on the merits. In his letter of complaint dated August 28, 2023, Mabhanisi stated that he had an issue with the special voting, which had taken place two days earlier. He said he was one of the nominees in the MP category under Kwaluseni Inkhundla.

“I have concerns, which I am not familiar with, in the manner the EBC has handled the special voting process, of which in my observation, was not properly handled, according to the law. First and foremost, I am concerned with why the special voting boxes were not submitted to where there was a count for ballot papers. Why they were not presented to the centre where candidates and agents were present at Divine Healing Ministries International in Manzini (sic).

“According to the law, they were supposed to be all presented on the day of counting. Moreover, all the Correctional facilities were supposed to present their boxes from the different regions because at the Divine Centre in Manzini, we were all present. We would like to know who counted the ballots boxes from all the Correctional services and we are interested in knowing the law that allows that to happen. We are also interested in knowing the results from all the Correctional institutions (sic),” his letter read.

Some inmates from Correctional centres in Nhlangano, Bhalekane, Big Bend, Mbabane, Matsapha and Pigg’s Peak voted during the special voting last month. Mabhanisi also informed the EBC that there were allegations that the boxes of ballot papers were tampered with at Matsapha Correctional Services. “We would like to appeal to EBC to come clean on this allegation because bribery has been the element of the game.

“We would like to know why the ballot boxes were kept at Correctional services instead of the EBC premises. We are very much interested in being engaged by the EBC on the matter and we appeal that it shall happen in seven days after getting this letter. All the nominees from Kwaluseni Umphakatsi (sic),” further read the letter.