Why AG says PM’s appointment constitutional
MBABANE – It has been a busy few days for the Office of the Attorney General ( AG) Sifiso Khumalo as he dug deep into his Law books.
He has, however, somehow managed to win over some members of the public, in particular the House of Assembly, that the newly- appointed Prime Minister, Cleopas Sipho Dlamini, was constitutionally appointed into office.
The AG, on Monday, informed Members of Parliament ( MPs) that the PM was appointed in terms of Section 67 ( 1) of the Constitution, which states that the King shall appoint the prime minister from among members of the House acting on the recommendation of the King’s Advisory Council.
The AG submitted that Dlamini qualified to be a member of the House as he was appointed by the King into the House of Assembly on Thursday July 15, 2021.
This, he said, according to Section 98 ( 1) ( f) of the Constitution, meant that Dlamini ceased to be a member of Senate, as the clause stated that the seat of a senator or an MP shall become vacant where the holder became a member of the other chamber in Parliament.
This was similar to what transpired when the late PM Ambrose Mandvulo Dlamini was appointed and MP, Prince Hlangabeza, was then moved to Senate.
According to Khumalo, by the time that the King appointed the current PM on Friday afternoon, an instrument which was Legal Notice No. 207 of 2021 appointing Dlamini to the House had been prepared and was signed by the appointing authority.
“The PM that we have was appointed after he was already a member of the House,” said Khumalo.
He highlighted that the mistake which people made was to assume that one only took up the position of being an MP once that member was sworn into the House after
taking the oath.
However, the AG brought the attention of the House of Assembly to Section 128 ( 1) of the Constitution, which addresses oaths by Members of Parliament and said it should not be wrongly interpreted.
It reads; “Every Member of Parliament shall, before taking the seat as such member take and subscribe before the chamber of which that member is a member, the oath of allegiance that is set out in the second schedule or such other oath as may be prescribed.”
The AG said the aforementioned section made no mention of an MP- elect, which
meant that the moment that someone was appointed or elected at their various tinkhundla centres, it meant that they were automatically MPs.
“The only thing a member cannot do is take the seat in the House without taking the oath,” said Khumalo.
Meanwhile, former High Court Judge Thomas Masuku, who is now based in Namibia, said he was wary of giving any opinions on this matter.
He said he was a sitting judge in that country and it would not fit their judicial code to do so.