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MBABANE –  Candidates who will lose in the national general election will now be allowed to lobby for seats in Senate.

This is because of a proposed amendment to the Senate Elections Act, which will align with a 2018 ruling of the full bench of the High Court in the case between former Lobamba Member of Parliament (MP) Michael Masilela and the Elections and Boundaries Commission (EBC). 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 97 of the Constitution. Section 97 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 97 include being insolvent, under sentence of death or imprisonment of more than six months and not being eligible to be a voter, among other things. Masilela was also successful in having the court further strike down this section of the Act, due to it being inconsistent with the Constitution.


This Section 5(3), under the subheading ‘Manner of electing Senators’, reads: “An unsuccessful candidate in the recent general election shall not be considered for nomination.” The Senate Elections (Amendment) Bill of 2023, which is soon expected to be debated by the House of Assembly, seeks to do away with this provision in its entity. “Section 5 of the Principal Act is amended by deleting Subsection (3) and by adding a new subsection as follows – ‘Following acceptance of nomination, a candidate shall present himself to the police for a clearance certificate, which shall be delivered by the police to the returning officer’,” reads the Amendment Bill. Masilela had been nominated for the position of MP at Nkhanini Royal Kraal, having satisfied all requirements to stand for the primary elections; however, during the voting he was unsuccessful and came second with 554 votes. The successful candidate obtained 561 votes.


After the unsuccessful run in the primary elections, Masilela turned his focus on making himself available for nomination and election into Senate, as he believed he qualified for nomination into Senate because the requirements for such qualification into that office were almost the same as those of an MP. The court heard former MP Masilela’s application, challenging the constitutionality of Section 5(3) of the Senate (elections) Act No.7 of 2013 and found that this section of the Act, that Masilela challenged, was indeed unconstitutional.
However, a week after this judgment, MPs acted in defiance of this court ruling by conducting the Senate elections with the exception of those who had lost in the recent national general election. Prior to 2013, there was no law that forbade candidates who had lost in the recent general election not to be considered for election or appointment into Senate. As a result, in 2008, His Majesty King Mswati III appointed Anthony Khephu Cindzi as a Senator despite him having lost in the national general election that year. Cindzi, a known staunch traditionalist, lost in the primary elections under Lobamba Constituency, which eventually saw Majahodvwa Khumalo becoming the MP. Earlier, before Cindzi’s appointment, the newly-elected MPs had conducted the election of 10 senators and a number of the legislators were against the election of those who had lost in the election.


The then EBC Chairperson, Chief Gija (now Manzini Regional Administrator), told the Times daily newspaper that it was not true that the people who crashed in the elections were not eligible to be engaged by the Head of State. “Such a thing is not provided for in any of the laws of the land. The laws are just quiet regarding election losers,” Dlamini said. Cindzi’s appointment came to the fore when he formed part of the MPs who paid a courtesy call on His Majesty at Lozitha Palace. Also in 2008, election losers Mariah Ntshangase and Mandlenkhosi Dlamini, aka DJ Nice, (now late) seriously lobbied to become senators. The two took the chance presented by the first meeting of the then newly-elected and appointed MPs to launch their bids for seats in Senate. Landing a seat in Senate, through being elected by MPs, is now a costly exercise as it has been widely reported in the media that a candidate should prepare a budget of between E200 000 and E300 000 to amass overwhelming votes from the members of the House of Assembly.


As per the Constitution, 10 senators are elected to Senate by members of the House of Assembly to make a total membership of 30 legislators in the upper chamber, with His Majesty the King appointing 20 senators. In 2018, an aspiring senator, who lost in the elections, accused 10 MPs of soliciting and accepting bribes amounting to E200 000 with the promise that they would vote her into Senate. However, after she did not make it, she demanded her money back and threatened to expose all of the MPs if they did not return the money. She even said she was prepared to face the full wrath of the law because she was aware that it is a crime to offer a bribe to anyone the same way it is to accept it. She said she felt let down by the MPs, whom she trusted would deliver her political ambition after accepting money from her in exchange for their votes in the Senate elections. In 2020, former Senate Deputy President Ngomuyayona Gamedze withdrew his candidacy for a vacant Senate seat and alleged that there were corrupt practices in the campaign process that threatened the very existence of the Tinkhundla System of Government.


Gamedze alleged that some MPs wanted ridiculous amounts of money to be given to them in order for one to secure a vote. He alleged that the money demanded by some of the legislators was not less than E10 000. In his withdrawal letter, Gamedze stated that he had unfortunately observed a very disturbing practice that seemed to ‘indicate that the election is open to the highest bidder’. “I am of the opinion that the election will consequently not be fair, just and in national interest. I, therefore, find myself with no option but to hereby respectfully withdraw my candidacy for the election of a senator,” Gamedze wrote. He had been nominated alongside Bongani Matsebula, Jacques Potgieter, Sifiso Mabuza and Jimmy Hlophe. Hlophe emerged the winner, but he died before he could complete his term and he has still not been replaced.