Swaziland’s Supreme Court dismissed a case that
political parties should not be banned from contesting the election in the
kingdom without hearing arguments.
It upheld an appeal to the High Court’s earlier
decision to dismiss the case.
The Swazi Democratic Party (SWADEPA) brought the case
that was about the rights to freedom of expression and association during the
election campaign period.
Political parties are banned from contesting the
election that takes place on Friday (21 September 2018). In Swaziland (recently
renamed Eswatini by the kingdom’s absolute monarch King Mswati III)
people are only allowed to elect 59 members of the House of Assembly; another
10 are appointed by the King. None of the 30-strong Swazi Senate are elected by
the people.
The King also appoints the Prime Minister and Cabinet
as well as top judges and civil servants.
In
a review of SWADEPA’s case just published the
Southern Africa Litigation Centre (SALC) said it ‘was summarily dismissed in
the Supreme Court without the Court hearing arguments on the appeal’.
It said SWADEPA took the Elections and Boundaries
Commission (EBC) to court to prevent it from interfering with: The rights of
candidates for election to the House of Assembly to express their political
and/ or other views or policies; The rights of candidates to associate publicly
with their chosen political parties; The rights of candidates to receive
sponsorship and support from political parties; and the rights of political
parties to provide sponsorship and support to their members.
According to Section 79 of the Swaziland Constitution the Tinkhundla-based system of government that exists in the kingdom emphasises individual merit as a basis for election to public office.
According to Section 79 of the Swaziland Constitution the Tinkhundla-based system of government that exists in the kingdom emphasises individual merit as a basis for election to public office.
‘This section has been interpreted by the government
and the Elections and Boundaries Commission to exclude political parties from
the electoral process, SALC said.
It added, ‘In contrast, [SWADEPA] submitted that the
reference to “individual merit” in section 79 means no more than a requirement
that each candidate for election be considered based on what he or she brings
to the table. They submitted that the case was necessary to ensure that
registered voters will be able to exercise their right to vote knowing all
relevant information about the candidates running for public office.”
It said the EBC’s response ‘was primarily focused on
narrow, technical issues, largely avoiding the important substantive issues.
‘For example, they argued that the applicants had no
right to raise the merits of the case before the Supreme Court, as the case was
dismissed on technical grounds in the High Court.’
One of the technical grounds was that SWADEPA could
not seek relief on behalf of all ‘registered voters who choose to run as
candidates for election’, and that the relief sought must pertain to the
individual applicants.
The EBC also claimed that a similar issue had already
been determined by the Supreme Court in 2009. In that case, the Supreme Court
held that the Constitution did not prevent a member of a political party from
seeking election as an independent candidate, and once elected, joining up with
others who think similarly to operate as a unit.
SALC said, ‘What the previous judgment did not address
was the nature and extent of permissible political party participation in any
candidate’s election campaign.’
It added, ‘[SWADEPA] sought very simple relief which
would not have run contrary to the current electoral legislation and did not
require anything from government. Both the High Court and the Supreme Court
decided not to hear arguments from either side and instead raised matters on
its own accord from the bench. These matters were of a procedural nature and
avoided dealing with the merits of the case. This runs contrary to
jurisprudence in constitutional matters where courts are normally enjoined to
hear matters where rights violations are alleged even if the procedural grounds
for bringing such matter might be flawed in some respect.’
See also
Organised Certainty, Why elections in Swaziland are not democratic
https://www.scribd.com/document/384752084/Organised-Certainty-Why-Elections-in-Swaziland-Are-Not-Democratic
Swaziland
(Eswatini) Election 2018: Links to Information and Analysis From Swazi Media
Commentary
U.S. Ambassador Encourages Parties
Swaziland Must Embrace Political Parties to Get on Track After Years of
Failure
https://swazimedia.blogspot.com/2018/08/swaziland-must-embrace-political.html
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