Sunday, September 16, 2018

Swaziland Supreme Court Dismisses Appeal to Unban Political Parties at Elections Without Hearing the Case

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. 

‘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

U.S. Ambassador Encourages Parties

Swaziland Must Embrace Political Parties to Get on Track After Years of Failure

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