Govt fights ruling giving MP election
MBABANE - Government has run to the Supreme Court to seek a reversal of the High Court full bench order that allows losers in the national general election to lobby for seats in Senate.
Prime Minister (PM) Cleopas Sipho Dlamini, Minister of -ustice and Constitutional Affairs Pholile Shakantu and Attorney *eneral (A*)Sifiso Mashampu Khumalo, want the Supreme Court to reinstate an appeal that was noted on November 21, 2018 after the full bench of the High Court ruled that Section 5(3) of the Senate Elections Act of 2013 was unconstitutional.
This ruling, which was in the matter between formeR /obamba Member of Parliament (MP) Michael 9usani Masilela and the Elections and Boundaries Commission (EBC), opened the way for those who had lost in the recent national general election to contest for Senate seats.
Having lost the elections in 2018, Masilela ran to court and successfully sought an order declaring Section 5(3) of the Senate Elections Act of 2013 as inconsistent with Section 7 of the Constitution.
Section 7 of the Constitution gives a list of qualities that disqualify a person from being nominated or elected into Senate and nowhere does it mention losing in the ‘recent general election’ as one of those.
The grounds mentioned in Section 7 include being insolvent, under sentence of death or imprisonment of more than si[ months and not being eligible to be a voter, among other things. As a result of reviving the appeal, the Senate Elections (Amendment) Bill of 2023, which seeks to allow losers in the recent national general election to lobby for Senate seats, has been withdrawn from the House of Assembly where it had been tabled alongside the Elections (Amendment) Bill of 2023 and the 9oters Registration (Amendment) Bill of 2023.
Affidavit
In the revived appeal, Minister Shakantu has deposed to a founding affidavit in which she outlines that as things stands, the effect of the High Court judgment is that a candidate who lost House of Assembly elections is able to thereafter stand for election into Senate.
“This is an undesirable second bite at the proverbial cherry. There is one general election every five years at three levels, from chiefdom level to the level and to the House of Assembly level. If a candidate loses at any stage or level, he has lost for good in that general election. The loss is a clear vote of no confidence in that candidate by the electorate. The judgment, therefore, offends against being dissatisfied with the judgment, noted an appeal in 2018 whose record was also filed and waited enrolment in the ne[t session of the Supreme Court in the year 201 .
The minister submits that there then arose a supervening event that derailed the appeal.
“As neither the chairperson of the Election and Boundaries Commission nor the Clerk to Parliament who conducted the Senate elections was cited and or interdiction, the elections were proceeded with on or about November 28, 2018,” further submits the minister.
She said Masilela was not nominated for the election into Senate on that second occasion and the appeal was thereby rendered nugatory.
She also submitted that the appeal was thus not pursued by both government and Masilela, neither did the registrar of the Supreme Court cause it to be enrolled nor were heads of argument filed by both parties in the evidently moribund appeal.
Reason
“There is no certitude that the appeal was ever enrolled and later fell off the roll for one reason or the other. Certainly, it was never withdrawn or abandoned as a matter of fact. This application proceeds from the premises that there has been a four-year lull from -anuary 201 to present (April 2023), so as to render the appeal lapsed by efflu[ion of time by any reasonable standards,” Shakantu argued.
She stated that the appeal may have fallen academic because of the Senate elections that were conducted on or about November 28, 2018, however, that did not per se remove it from the court’s list of awaiting matters pending enrollment for determination.
“Now that we have reached the ne[t election year from 2018 when the dispute first arose, the same issue re-emerges and becomes live again. Is Section 5(3) of the Senate Elections Act 7 2013 unconstitutional as so pronounced by the court a quo whose decision was appealed to this court?” the minister asked.
Shakantu pointed out that with the looming parliamentary elections to be followed by Senate elections any date from now, it was imperative to know how to proceed with the latter elections.
She said the lingering uncertainty was not in the interest of justice.
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