Matojo Cosatta
JF-Expert Member
- Jul 28, 2017
- 234
- 390
MGOMBEA BINAFSI REGISTERED LEGAL VICTORY IN SOUTH AFRICA.
The right of mgombea binafsi to participate in parliamentary elections and provincial elections registered victory in the Republic of South Africa last month on 11th June, 2020, this is about 10 years after mgombea binafsi right met its death sentence in the Court of Appeal of Tanzania in the case of *Attorney General Vs Mtikila in 2010. My legal mind is alive that phrase “Mgombea Binafsi” (Private Candidate) is inappropriate legal lexicon in the realm of constitutional law and electoral law as it was pointed out by my good Professor, Hon. Paramagamba Kabudi in the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 who proposed that the appropriate legal lexicon is, and should be, ”Mgombea Huru” (independent candidate) and his proposal was passionately bought by Court of Appeal, however, the phrase, ”Mgombea Binafsi” is politically romantic and user friendly in Tanzania than the phrase ”Mgombea Huru” that is why I prefer to employ the phrase ”Mgombea Binafsi” in lieu of ”Mgombea Huru”.
I would like to bring into attention of members of legal fraternity, civil rights activists and politicians in particular as well as all citizens of this great res republica in generally that the Constitutional Court of the Republic of South Africa last month on 11th June, 2020 ruled that independent candidates not affiliated to any political party are now permitted to contest Parliamentary Elections and Provincial Elections. Prior to the ruling of the Constitutional Court, it was only members of Parliament and of Provincial Legislatures sponsored by political parties who were permitted to participate in parliamentary and provincial elections respectively, whereas independent candidates were barred from participating in parliamentary and provincial elections except in local government elections.
In a landmark judgment, penned downed by Justice Mbuyiseli Madlanga on behalf of majority ruled that the current Electoral Act of 1998 is unconstitutional on ground that it mandatorily requires citizens to vie for the national and provincial political offices through political parties only. Constitutional Court set 24 months as time frame within which parliament should amend the electoral law with a view to bring it in line with the Constitution of South Africa.
To put it in legalese or rather to put it in legal language, I would rather say that the Constitutional Court of the Republic of South Africa on 11th June, 2020 in the case of New Nation Movement NPC & 2 Others Vs President of the Republic of South Africa & 4 Others [2020] ZACC 11 ruled that Section 57 A of the Electoral Act, 1998 (Act No. 73 of 1998) and the Schedule 1 A thereto are repugnant to, and inconsistent with provisions of Section 18 and 19 (3) (b) of the Constitution of the Republic of South Africa, 1996 as far as Constitutional Right of freedom of association and right to participate in public affairs through vying elective office are concerned. As result, the Constitutional Court declared Section 57 A and Schedule 1 A thereof of the said Act to be unconstitutional to the extent it denies independent candidates right to participate in Parliamentary Elections and Provincial Elections and to the extent it mandatorily requires that citizens of South Africa should be elected to the National Assembly (Parliament) and Provincial Legislatures through their political parties only.
Froneman, J delivered the dissenting opinion as he ruled against the independent candidacy right whereas the rest 8 judges (the majority) namely Madlanga J, Jafta J, Cameron J, Khampepe J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ ruled in favour of the right of independent candidates to participate in parliamentary and provincial elections as the 6 judges concurred with the judgment delivered by Madlanga J and Jafta J.
It is important to note that New Nation Movement NPC and 3 others litigants instituted constitutional case in the High Court of Western Cape Province in 2018 against President and 4 other respondents namely New Nation Movement PPC and 4 Others V President of the Republic of South Africa and 4 Others [2019] 5 SA 533 challenging constitutionality of provisions of Section 57 A of the Electoral Act, 1998 and the Schedule 1 A thereto which used to deny independent candidates right to participate in parliamentary and provincial elections. However, the said constitutional case was dismissed by the High Court of Western Cape Province. Consequently, New Nation Movement PPC and 2 Others litigants lodged appeal in the Constitutional Court which allowed the appeal on 11th June, 2020 or rather it ruled in their favour.
Matojo M. Cosatta
8th July, 2020
Author is advocate of High Court of Tanzania and subordinate Courts thereto and for any question or request for clarification relating to this subject matter contact him through his e-mail address: cosatta9@gmail.com
The right of mgombea binafsi to participate in parliamentary elections and provincial elections registered victory in the Republic of South Africa last month on 11th June, 2020, this is about 10 years after mgombea binafsi right met its death sentence in the Court of Appeal of Tanzania in the case of *Attorney General Vs Mtikila in 2010. My legal mind is alive that phrase “Mgombea Binafsi” (Private Candidate) is inappropriate legal lexicon in the realm of constitutional law and electoral law as it was pointed out by my good Professor, Hon. Paramagamba Kabudi in the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 who proposed that the appropriate legal lexicon is, and should be, ”Mgombea Huru” (independent candidate) and his proposal was passionately bought by Court of Appeal, however, the phrase, ”Mgombea Binafsi” is politically romantic and user friendly in Tanzania than the phrase ”Mgombea Huru” that is why I prefer to employ the phrase ”Mgombea Binafsi” in lieu of ”Mgombea Huru”.
I would like to bring into attention of members of legal fraternity, civil rights activists and politicians in particular as well as all citizens of this great res republica in generally that the Constitutional Court of the Republic of South Africa last month on 11th June, 2020 ruled that independent candidates not affiliated to any political party are now permitted to contest Parliamentary Elections and Provincial Elections. Prior to the ruling of the Constitutional Court, it was only members of Parliament and of Provincial Legislatures sponsored by political parties who were permitted to participate in parliamentary and provincial elections respectively, whereas independent candidates were barred from participating in parliamentary and provincial elections except in local government elections.
In a landmark judgment, penned downed by Justice Mbuyiseli Madlanga on behalf of majority ruled that the current Electoral Act of 1998 is unconstitutional on ground that it mandatorily requires citizens to vie for the national and provincial political offices through political parties only. Constitutional Court set 24 months as time frame within which parliament should amend the electoral law with a view to bring it in line with the Constitution of South Africa.
To put it in legalese or rather to put it in legal language, I would rather say that the Constitutional Court of the Republic of South Africa on 11th June, 2020 in the case of New Nation Movement NPC & 2 Others Vs President of the Republic of South Africa & 4 Others [2020] ZACC 11 ruled that Section 57 A of the Electoral Act, 1998 (Act No. 73 of 1998) and the Schedule 1 A thereto are repugnant to, and inconsistent with provisions of Section 18 and 19 (3) (b) of the Constitution of the Republic of South Africa, 1996 as far as Constitutional Right of freedom of association and right to participate in public affairs through vying elective office are concerned. As result, the Constitutional Court declared Section 57 A and Schedule 1 A thereof of the said Act to be unconstitutional to the extent it denies independent candidates right to participate in Parliamentary Elections and Provincial Elections and to the extent it mandatorily requires that citizens of South Africa should be elected to the National Assembly (Parliament) and Provincial Legislatures through their political parties only.
Froneman, J delivered the dissenting opinion as he ruled against the independent candidacy right whereas the rest 8 judges (the majority) namely Madlanga J, Jafta J, Cameron J, Khampepe J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ ruled in favour of the right of independent candidates to participate in parliamentary and provincial elections as the 6 judges concurred with the judgment delivered by Madlanga J and Jafta J.
It is important to note that New Nation Movement NPC and 3 others litigants instituted constitutional case in the High Court of Western Cape Province in 2018 against President and 4 other respondents namely New Nation Movement PPC and 4 Others V President of the Republic of South Africa and 4 Others [2019] 5 SA 533 challenging constitutionality of provisions of Section 57 A of the Electoral Act, 1998 and the Schedule 1 A thereto which used to deny independent candidates right to participate in parliamentary and provincial elections. However, the said constitutional case was dismissed by the High Court of Western Cape Province. Consequently, New Nation Movement PPC and 2 Others litigants lodged appeal in the Constitutional Court which allowed the appeal on 11th June, 2020 or rather it ruled in their favour.
Matojo M. Cosatta
8th July, 2020
Author is advocate of High Court of Tanzania and subordinate Courts thereto and for any question or request for clarification relating to this subject matter contact him through his e-mail address: cosatta9@gmail.com
