LEGAL CHALLENGES TO SWAZI ELECTIONS

UNCLAS MBABANE 000240


DEPT FOR AF/S (MHARRIS)

E.O. 12958: N/A
TAGS: PGOV, PREL, KDEM, WZ
SUBJECT: LEGAL CHALLENGES TO SWAZI ELECTIONS

A) MBABANE 80; B) MBABANE 101; C) MBABANE 159; D) MBABANE 193 E) MBABANE 226

1. SUMMARY: In the run-up to the September 19 Swazi parliamentary
elections, local NGO, civic and faith based organizations and trade
unions have filed several legal challenges questioning the legal
framework of the Elections and Boundaries Commission (EBC),which
oversees the voter registration and election process. Two cases
challenge the constitutionality of EBC and Judicial Services
Commission (JSC) appointees; one continues the long running argument
about the legal standing of political parties; and another sought an
injunction on recently announced election dates. These High Court
challenges are in all likelihood irrelevant in regard to 2008
elections, as procedural delays and hearing scheduling might easily
push any ruling until after the September 19 parliamentary election.
END SUMMARY

BACKGROUND

2. The EBC has been plagued by legal challenges since its inception
in March 2008. On April 9 the National Constitutional Assembly
(NCA),an association of political parties and trade unions, filed
its two suits. On April 16, High Court Justice Qinisile Mabuza
recused herself from the EBC/JSC case, leaving the court short one
judge. On June 4, the Commonwealth justice scheduled to join the
bench and replace Judge Mabuza, revoked his acceptance of the
position. In May, the NCA lost its suit to have the constitution
nullified. Reftels provide illumination on Swazi electoral issues.

CURRENT CHALLENGES

3. The Government of the Kingdom of Swaziland (GKOS) and the EBC
are facing three election related cases in the Swazi High Court. In
April, the NCA filed two suits. One case argues against the GKOS
assertion, as well as a previous court ruling, that political
parties do not have right to participate in the electoral process
under the 2006 constitution. It states that election to parliament
must be based on "individual merit," therefore not as a member of a
political party. On June 28, after two days of hearings, the court
rescheduled closing arguments for August 14.

4. On July 23, the Swaziland Coalition of Concerned Civic
Organizations Trust (SCCCOT),an umbrella NGO of civic and church
organizations, and prominent civic society members filed an
application with the High Court for an order declaring the
appointment of EBC members unlawful because the EBC appointment
process did not follow the law and the appointees are not qualified
according to requirements in the constitution. The court has not
set a hearing date and SCCCOT does not expect the case to be heard
before September.

5. On July 31, the NCA filed an urgent application with the High
Court for an order to stop the elections process. On August 1, the
High Court heard NCA arguments that allowing nominations to proceed
without a court ruling on the legal standing of political parties
would make their main application irrelevant and amount to a
pre-judgment. In a 2-1 ruling, the High Court sided with GKOS, and
the electoral process began on August 2.

6. On July 24, EmbOff and CDA attended court proceedings on the
legal standing of political parties. The Attorney General stated
repeatedly that issues of democracy and constitution are outside the
jurisdiction of the judiciary and therefore the court has no right
to interfere in government. On August 1, EmbOff attended the NCA
hearing that requested an injunction. Questioned by a justice, the
Attorney General acknowledged that the GKOS response was based
entirely on procedural matters and reasserted an earlier argument
that the constitutionally-guaranteed freedom of assembly and
association has nothing to do with political association.

7. COMMENT: Although it is uncertain whether the court delays and
decisions are politically/royally mandated, or if the court is
trying to insulate itself from ruling on cases with serious
political implications, these delays have proven to be the silent
ally of GKOS and the EBC. The High Court's August 1 decision
essentially makes the NCA's arguments irrelevant, since the
nomination of candidates for members of parliament proceeded without
allowing political party members to campaign based upon party
affiliations. It is therefore unlikely that any of the court cases
will have a bearing on 2008 elections. Nevertheless, these recent
discouraging judicial decisions, which were based strictly upon
procedural matters and court delays, have left open the door for
future judiciary reviews of critical issues such as the right to
establish a multi-party democracy in Swaziland and qualifications
for members of the EBC. END COMMENT

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