HOW SHOULD PARLIAMENT RESPOND TO COPE (L) REQUESTING THAT SHILOWA BE REPLACED AS AN MP?
Parliament is facing one of the most fascinating politico-legal puzzles since 1994. It is a pity that this puzzle is attracting virtually no legal or political analysis, no doubt because the political party delivering us this gem, Congress of the People (Cope), has worn us all out with their internal battles. But hear me out. It really is interesting: when two factions in a parliamentary party have an intractable battle about leadership, and one faction expels members from another faction, should parliament allow the faction that did the expelling to successfully have the 'expelled' members replaced as MPs, given that they are no longer a member of that party, and notwithstanding the unresolved faction fighting?
More to the point, will the Speaker of parliament accept a request by Mosiuoa Lekota's faction of Cope that Mbhazima Shilowa be replaced as an MP since they have expelled him as a member of the party? I suspect the Speaker will not allow Shilowa to be replaced - just yet - but this is tricky terrain. So, what are the possible scenarios of how this might play out?
One possibility is that parliament might defer to the Independent Electoral Commission (IEC) who, after all, register parties and administer the lists that are presented to it by each party of those party members who are nominated for parliamentary seats. But, when I contacted the IEC recently to get a perspective on this issue, anticipating that the opening of parliament would expose our body politic to this dilemma, a spokesperson returned my query with a clear indication that they see this as a question falling outside their ambit, and perhaps one to be settled by lawyers.
I remain unsatisfied by the IEC washing their hands of this mess. While I am no lawyer, I would have thought that the answer to this puzzle is to be located within electoral law, of which the IEC should be experts. One possibility is to see, for example, who is registered with the IEC as party leader, or contact person, to determine who, pending the outcome of court cases, the person is who is entitled to express the party's position on lists for parliament.
This solution, however, seems intuitively unfair (though I remain ignorant of the legal fact of the matter). It cannot be the case, surely, that the deponent (who, in this case, might well have been one of the Kilians, Juli or Johan) of some documents at the IEC headquarters inadvertently own the name and brand of the party.