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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