Yesterday was a busy day when emaSwati from the four corners of the country voted for their favourite candidates to represent them in the 12th Parliament.
Parliamentary elections are a crucial element of democracy. Of course, Parliament is one of the key institutions of democracy through which the will of the people is expressed. Parliament has three main functions – lawmaking, oversight and representation. We can then realise how important they are in our societies. The people we elect to represent us in Parliament should be aware of the roles of this extremely crucial institution. They are not there to take a nap or amass wealth for personal gain.
They are in Parliament to sharpen the rules that govern society and ensure protection of people’s dignity and human rights. In case society expresses discontent with the executive and judiciary, they are obligated to initiate enquiries into the conduct of these institutions, which are also very crucial in the administration of justice and service delivery. The MPs of the 12th Parliament are not ‘yes boys’, but should execute their duties honestly, respectfully and within the confines of our ‘just’ culture. They must not fear to disclose archaic cultures that take us back to the Stone Age.
Amend
The world wants to see how we govern ourselves in the wake of the June/July 2021 civil unrest that claimed human life. I can only advise the lawmakers of the 12th Parliament to initiate reforms of any kind, if necessary, in accordance with the Constitution of the Kingdom of Eswatini. Whenever there is a need to amend the Constitution as guided or instructed by society, they are at liberty to do so through the proper channels created for such purposes. They must respect the presiding officers, at the same time, ensuring that they preside over the sittings in an acceptable manner and in accordance with international parliamentary standards.
The country cannot afford a Speaker or president who suppresses the right to freedom of expression. The right to freedom of expression is very crucial in fostering peace, social cohesion and economic development. The suppression of this right, mainly in Parliament, propels the masses to look for alternative means. The impromptu suspension of sittings in 2021 by the former presiding officers contributed, in one way or the other, in fuelling the civil unrest. Consequently, the frustrated legislators went outside Parliament to express themselves through press conferences and social media. This is not good for a democratic institution.
Where the Speaker, for instance, is unable to control the House, the country has rules in place to offer guidance. The nation must not only be told of an uncontrollable House but they ought to see the House in shambles or turning chaotic to be able to support the Speaker’s decision to suspend sittings.
I can also advise the executive and judiciary to respect the institution for the people – Parliament. The Head of State is a lawmaker as the Constitution provides that the passing of laws in Eswatini vests in the King and Parliament.
Disobeying
It effectively means that disobeying this institution is tantamount to disrespecting the King. As he will officially open the first session of the 12th Parliament, the King needs to express it without fear that he has an interest in the affairs of the Parliament because the laws that these Members of Parliament (MPs) pass are eventually taken to him for assent. They don’t become effective laws unless they have been signed by him.
The Head of State is also guided by the Constitution, which places an obligation on him to defend. Therefore, expectations are that the King rules through Parliament. As he rules through Parliament, he is guided by this Parliament in whatever he does that is related to public policy.
A ‘no’ from Parliament is a ‘law’ that must be upheld by the Head of State and his executive. This, they shall do in order to usher this country to the first world. Let us prove to the outside world that our parliamentary system of voting is effective in public administration. We can only be able to prove to the outside world that our democracy is effective by maintaining and strengthening the legislature. If emaSwati inculcate a culture of genuinely upholding the powers and duties of the lawmaking chambers, the world will denounce the notion that our Parliament is a rubberstamp.
It is a rubberstamp when we refuse to abide by its resolution.
The first thing that the next Parliament should do is to revive the Anti-Corruption Commission (ACC). I have observed that government officials and certain captains of industry are doing as they please as they disregard tender regulations without any fear of retribution and reprisal from any formal structure designed to counter corruption. Anthony, a reader of the Times of Eswatini, wrote a letter to the editor that was published on July 30, 2023, in which he pointed out that the “evils of corruption are well documented, the Anti Corruption Commission (ACC) has been rendered useless by a justice system that should have protected it.”
Expression
I think Anthony was referring to the chief justice’s obiter dictum on the ACC. An obiter dictum is a judge’s incidental expression of opinion, not essential to the decision and not establishing precedent. Although Bheki Maphalala, the Chief Justice (CJ), did not stop the operation of the ACC through his opinion, the commission felt the obiter dictum would have an influence in the manner in which corruption cases would be handled by the courts.
Maphalala opined that certain sections of the Prevention of Corruption Act were unconstitutional. This was when he dismissed the application filed by the ACC to have Gideon Dlamini, the former Minister of Commerce, Industry and Trade, arrested with Nigerian businessman Fred Ngeri and his wife, Sindile, for corruption related offences.
Maphalala made statements known as obiter dicta or dictum when he delivered the judgment on certain sections, including Section 12 under which Nathi Dlamini, the former Managing Director of the Swaziland (Eswatini) Posts and Telecommunications Corporation, had been charged. He opined that these sections were not in conformity with the Constitution. During Nathi’s trial for allegedly contravening Section 12(3) (a) of the Prevention of Corruption Act No.3 of 2006, he (Nathi) actually raised a point of law based on the findings of the CJ.
He was represented by Ben J Simelane in the case. He submitted that the judgment in the matter between the ACC and the former minister be held to be applicable in so far as it was held that Section 12 of the Act was unconstitutional. His attorney, Simelane, submitted that the CJ had given all and sundry his opinion in the matter. Although Principal Judge Qinisile Mabuza reminded him that the CJ made an opinion, the senior attorney mentioned that judgments of the court were the court’s opinion. Judge Mabuza asked Simelane if he did not think that he should have filed a substantive application so that she would decide whether the matter should go before a full bench or she decided it herself.
Constitutional
Nathi’s attorney said there would be a problem if all the people who had constitutional issues were to file separate applications yet the court had made a decision on a similar matter. The principal judge said it would be different with Nathi’s case because he challenged certain aspects of his arrest in the High Court and in the Supreme Court without success and the CJ said the status quo should remain. “Your client is in a separate category. Your client is not at the arrest stage as Mr Gideon Dlamini was,” said Principal Judge Mabuza. Simelane said the court accepted that Sections 11, 12 and 13 of the Prevention of Corruption Act were unconstitutional. The principal judge said that was why he should have filed a full-blown application because as things stood, she would continue with the trial.
I am raising this issue to highlight that we have a dysfunctional ACC that needs to be revived by the 12th Parliament. There are cases of pompous corruption in the country wherein people practise corruption without fear. They flout the law deliberately because they know that they will not be arrested. They regard government as their cash cow. They actually regard government as their personal business. They offer tenders to their friends and siblings, without any fear of punishment or arrest, after all, no one will arrest them because government is their personal business. We are looking forward to a serious Parliament that will cleanse the country of this cancer. Revive the ACC!