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BACEDE, MTHANDENI TO RECEIVE PAY TILL DEATH

15/10/2023 16:35:00 Mhlonishwa Motsa

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MBABANE – Now that the new Parliament is in place, jailed ex-MPs Mduduzi Bacede Mabuza and Mthandeni Dube have something to smile about.

They are legitimate pensioners, government sources said. Mabuza and Dube, convicted of terrorism charges, are poised to get over E400 000 as a tax-free pension allowance, the equivalent of one-third of their five-year savings. They are expected to also receive an ex-gratia of around E588 000 apiece. They are said to be eligible for the benefits because they were never removed or dismissed from the august House. Notably, they will be sentenced by Judge Mumcy Dlamini after the 12th Parliament has already held its first sitting. It effectively means that they legally served their full term, sources continued to say.

It must be said that they were only convicted four months ago by the judge. A Parliament seat is forfeited on sentence. Therefore, without the sentencing, there was to be no by-elections or declaration of their seats as vacant, sources said. 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.

convicted

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. On the other hand, the seat for self 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 twenty 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 also 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 No.2 of 2013.

Benefits

The Ministry of Finance issued a memo in July 2023 that members of Parliament would continue to receive their benefits until the new Parliament was in place. As a result, the duo will receive a one-third lump sum of E400 000 from their pension savings. In total, each former legislator is likely to get E988 000. They are then eligible for a combined payout of E1 976 000. The ex-gratia can be defined as 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 ex-gratia is paid as once-off payment equal to a year basic salary before taxation. It is paid to former MPs to adjust to non-parliamentary life. Since they were not sentenced until the new Parliament is in place, impeccable sources familiar with such matters said ‘they are now regarded as former MPs.’ Finance Circular No.2 of 2013 is only applicable to the 11th Parliament as the 12th Parliament has its own document titled “Finance Circular No.2 of 2023. According to the memo issued by the Ministry of Finance on July 25, 2023, the Finance Circular No.2 of 2013 should be applied strictly in the payment of salaries, allowances and terminal benefits for parliamentarians and their support staff. “Parliamentarians’ salaries and allowances accruing to them under Circular No.2 of 2013 to be paid in full until the day preceding the first meeting of the House following the general election,” reads the memo.The first sitting of the 12th Parliament was on October 2, 2023 when they were sworn-in. They also elected the Speaker, Jabulani Mabuza, the former Minister of Agriculture.

His Majesty the King dissolved the 11th Parliament on July 11, 2023. Neal Rijkenberg, the former Minister of Finance, was quoted by the Times SUNDAY about two months ago to have said that 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 Sifiso Khumalo, also an ex-officio member of Parliament, had said in a previous interview that gratuity was paid at the end of term as per the Circular. “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 in the previous interview. Technically, he said it was not yet a factor that Parliament was dissolved. He said they did 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.

obligatory

He said an ex-gratia was discretionary upon the employer, not obligatory. 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 attorney general 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. “It is obvious that they will be sentenced after a new Parliament has been set up. They are former MPs covered by the laws of the country in terms of eligibility for benefits,” one of the seasoned attorneys said. Comfort Shabalala, the Chief Executive Officer (CEO) of the Members of Parliament and Designated Officers Bearers Pension Fund (MOPADO), referred this newspaper to the piece of legislation governing the benefits of the current and former parliamentarians.