Cablegate: Embassy Mbabane

R 121446Z AUG 08




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 XXXXXXXXXXXX, 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 PARKER

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