Priti Patel
24 November 2008
opinion
Johannesburg — IN THE past few weeks we have been inundated with news of the historic US elections.
From reports describing the worldwide euphoria at the election of an African-American man to the highest ranking office in the US, to data noting one of the highest voter turnouts in US history, the US election has become an example of democracy done right.
Maybe because of the fascination with and excitement of the US elections, we have missed the recent struggle for democracy and the rule of law happening closer to home.
The High Court in Swaziland recently heard a case challenging the independence of the Swazi Electoral and Boundaries Commission (EBC) and its members. Under the constitution, the EBC ensures fair and free elections by, among other things, overseeing the registration of voters, and facilitating civic and voter education. Requiring that the EBC be independent, the constitution sensibly requires that it cannot be subject to the direction or control of another person or authority.
The constitutional challenge, brought by the Swaziland Coalition of Concerned Civic Organisations, a coalition representing a wide array of civil society groups in Swaziland, argued that not only was the EBC not independent as required by the constitution, but that a number of its members were too enmeshed with King Mswati to be independent as they fail to meet the minimum qualifications required under the constitution.
The government has responded to this challenge by arguing, in part, that the decisions of the king in choosing the EBC members are above the constitution.
This all may not seem like much, especially in the wake of election news from the US and the continuing saga of the African National Congress split. But the EBC holds a powerful position in ensuring that the political process and future elections in Swaziland are free and fair. The independence of the EBC from the government and the monarchy is vital to guarantee democratic elections in light of the unsurprising interest of Mswati in the outcome of elections.
We have seen in Africa the horrific ramifications of illegitimate elections and the role compromised electoral commissions play in attempting to legitimise them. In the past year, Kenya and Zimbabwe have struggled in the aftermath of deeply flawed elections. In Kenya, the decision of the electoral commission to declare Mwai Kibaki the winner after a number of independent organisations raised concerns regarding the free and fair nature of the elections led to mass violence ending in a fragile power-sharing agreement in February. In Zimbabwe, widespread voter intimidation marred the original elections in March and the run-off in June. The Zimbabwe Electoral Commission's failure to release the March election results in a timely manner served to further raise concerns about the legitimacy of the elections. We are not yet at that crossroads in Swaziland, but this is the time to be vigilant before any future elections.
This case is particularly important in Swaziland, where the rule of law and democracy are still relatively young concepts and the country is in the midst of a struggle between monarchical power and the rule of law as embodied in the constitution. Three years ago, Swaziland enacted its constitution which, though flawed, contains numerous guarantees of fundamental rights. And yet in the years since the enactment of the constitution, Mswati remains the primary holder and wielder of power. And it doesn't look like he will willingly concede that power and be held accountable to the constitution. The government has put the very nature of a constitutional democracy at stake in this case by claiming that decisions of the king cannot be interrogated by a court. This has become even clearer with the recent arrest of Mario Masuku, the leader of People's United Democratic Movement, a day after the movement and three other organisations were labelled as terrorists by the government. The label makes it illegal for people to be members of these organisations or for the organisations to hold public meetings.
Though marred with their own problems of voter registration and misinformation, the US elections have highlighted the critical importance of widespread civic participation in the elections, free and open discussion of the issues and the stances of each candidate, and the freedom of the press to report on the elections. Free and fair elections are the linchpins of democracy and, unfortunately, the evidence shows that Swaziland is moving in another direction.
We now await a verdict from the court, which is likely to be appealed. But let's hope that as a first and important step, the High Court chooses to uphold the pre-eminence of the constitution and democracy. If the constitution is to have any meaning in this emerging democracy, it is the courts that will have to limit the power of the monarch and bring the country towards a working constitutional democracy.
Patel is the acting director of the Southern Africa Litigation Centre.
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