Constitutional implications of Mumcy’s anticipated judgment on MPs
MBABANE – Even after the judgment has been delivered, there is still a long way to go. The judgment that is eagerly awaited, is one that Judge Mumcy Dlamini will deliver. It pertains to the case of Hosea MP Mduduzi Bacede and Ngwempisi MP Mthandeni Dube.
It is likely that the judgment may have constitutional implications or effects on the fate of the two incarcerated Members of Parliament (MPs).
The Times SUNDAY analyses the supreme law to ascertain the constitutional repercussions of the judgment in case of the acquittal, sentencing, pardon, reduction of sentence or appeal.
However, there are two main expectations from the case of the duo, it has been learnt. It is common knowledge that they will either be acquitted or convicted.
The conviction may not be a great deal for concern. It is the sentencing that will determine the fate of the two MPs – if they lose or keep their seats in the House of Assembly.
TWO ELEMENTS
On the strength of the Constitution, it can be said that the sentencing has two elements – the positive effect and negative effect. Both effects have direct bearings on the Constitution, it must be said.
The first element of the sentencing may result in the MPs keeping their seats. This is in case the judge sentences them to a term of less than six months imprisonment.
On the other hand, if the judge sentences them to a term of six months or in excess of six months, they could forfeit their seats. This could necessitate by-elections at Hosea and Ngwemphisi.
This is based on Section 99 of the Constitution.
Reads Section 99 (1): “Where a of the Senate or the House is for an offence which is a criminal offence in Swaziland (Eswatini) 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.”
DATE OF THE SENTENCE
The seat becomes vacant at the expiration of a period of 60 days from the date of the sentence. If the judge sentences them on July 10, 2022, it means their seats shall become vacant in the terms of the Constitution on September 10, 2022.
Even if the judge suspends the sentence, as long as it is a six-month or more than six month imprisonment, they shall cease forthwith to be MPs.
PARDON
In another development, they could keep their seats in case they receive a free pardon before the expiration of a period of two months (60 days) after the sentencing. It is stated in the supreme law that they can also keep their seats when 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.
SUSPENSION
The MPs may not be off the hook, but may receive what other people may define as a lighter punishment. Section 99 (3) provides that the MPs shall be deemed to have been suspended if the sentence is reduced to a term less than six months but more than two months.
It effectively means that they could be suspended for two months if they are sentenced to a term of two months or four months if the sentence is reduced to four months.
Reads Section 99 (3): “Where in terms of subsection (2) the sentence of the member has been reduced to a term less than six months but more than two months the member shall be deemed to have been suspended by the Senate or House as the case maybe for the duration of the effective term of imprisonment unless the concerned chamber resolves otherwise.”
It must be emphasised that the chamber reserves the right to review the period of suspension. Regarding this case, it falls within the jurisdiction of the House of Assembly.
Judge Mumcy Dlamini is expected to deliver judgment on an application filed by the two incarcerated MPs seeking acquittal on the grounds that the Crown failed to prove a case against them.
Opposing the application, the Crown said MP Mabuza and MP Dube had a case to answer.
They had filed their application in terms of Section 174 (4) of the Constitution.
The constitutional provision states that, if at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it may acquit and discharge him.
EXPECTED TO DELIVER
It was reported last month that Judge Dlamini was expected to deliver his judgment on the matter in the first or second week of July 2022. In December 2021, MP Mabuza and MP Dube wrote a letter to His Majesty King Mswati III asking him to intervene in the matter.
“We have noted with great concern Your Majesty that we are the few selected members of Parliament who have been ridiculed, embarrassed, persecuted and insulted and now placed behind bars for carrying out our mandate as members of Parliament,” this is what they wrote in the letter addressed to the King.
They wondered what was basically the duty of an MP was, as in their understandmember
ing it was to seek changes to meet societal needs of the citizenry.
“We have always called for dialogue and negotiations in the transition of power in Eswatini, so that people can be able to elect their own government that will have the people’s best interest at heart,” stated the MPs.
The imprisoned MPs went on to state that they, therefore, felt and believed they were being persecuted mainly for holding different political opinions.
“It is for these reasons that we want to bring this matter to your attention. A call for change in government can never be regarded as seditious, terrorist or even murderous, if anything, it is democratic and parliamentary,” reads part of the letter.
The letter was delivered to the King’s Office on December 2, 2021. They mentioned that the submissions they made in Parliament were not their beliefs, but the assertions made by the people who voted them into Parliament. They further highlighted to the King that MPs had always raised motions within the House and as such, the assertion or submissions they made in Parliament were similar to those they made in public. The duo told the King that they had never made any public interview on issues that were not discussed within Parliament. They asked rhetorically: “Then we ask ourselves, how Members of Parliament will work from now on, in fear of being arrested?”
HEAVILY PUNISHED
They stated that they were, however, astonished at circumstances showing that they were being persecuted, victimised and heavily punished for doing exactly what MPs are ordinarily doing in any democratic society.
“Your Majesty, Parliament Privilege cannot be ousted by any court, mainly because Members of Parliament would not be able to freely legislate and make submissions without fear or favour,” they said in the letter.
They said the least expectation from the King’s Office was to investigate the authenticity of an audio which circulated on social media, purporting that their arrest was orchestrated by the King as alleged by a senior military officer. They mentioned the name of the senior military officer.
“Our continued incarceration has a negative effect on our constituencies, which we were voted to represent in Parliament. At the
moment, no one represents our constituencies and we are getting paid for a job we are not doing, which is everything that we stand against,” said the MPs.
The MPs stated that they believed that for every MP to earn a living, they must execute the duty of representing the interest of the electorate.
INVESTED A LOT
“Secondly, Your Majesty, we are also businessmen who have invested a lot in our country and lastly, we also have families that rely on us for survival. Our children are steadfastly growing in our absence and our families remain affected by our arrest,” said the duo.
COMMON KNOWLEDGE
They further informed the King that it was common knowledge that their arrest was of a constitutional nature, mainly because the speeches the Crown relied on, especially for charges of terrorism, sedition and murder, were allegedly made in exercising their right enshrined in Section 24 of the Constitution.
Section 24(1) of the Constitution provides that a person has a right to freedom of expression and opinion. The MPs stated that: “It is prudent Your Majesty, that we practise the democracy we say prevails in the country.”
Mabuza and Dube told the King that their continued incarceration was prejudicial to them and it was also unconstitutional and the office of the Ingwenyama shall be the last resort in matters such as this one.
They said it was for this reason that they sought the intervention of the King in this matter. They insisted that it was their firmest belief that they were being persecuted.