Winnie Madikizela-Mandela’s nomination by the African National Congress (ANC) on its election list for the National Assembly has been approved by the Independent Electoral Commission (IEC), despite her criminal record.
On the official provisional list of candidates published on Monday, the ex-wife of former president Nelson Mandela appears in fifth place for the ANC, just after Finance Minister Trevor Manuel and ahead of Foreign Minister Nkosazana Dlamini-Zuma.
Legal experts have warned that her conviction for fraud makes her ineligible for a seat in the legislature.
The popular ANC veteran had a five-year sentence for fraud and theft reduced on appeal to three-and-a-half years for 43 convictions for fraud in July 2004. The sentence was suspended for five years.
The Constitution bars a person sentenced to more than 12 months in jail without the option of a fine from Parliament, and from the provincial legislatures until five years after the sentence had been ”completed”.
The ANC has argued that because Madikizela-Mandela never actually went to jail, the constitutional provision does not disqualify her from returning to Parliament after the April 22 elections.
However, Shadrack Gutto from the University of South Africa said last month the fact that Madikizela-Mandela never actually served jail time was immaterial.
”During the existence of that suspension you are somebody who is considered to be a criminal. You are free, but not from a criminal point of view, you are simply not incarcerated,” he said.
”She is not eligible to become a member of Parliament until that period has expired. My understanding is that that interpretation of the Constitution is in line with the letter and the spirit of the law.”
He said the ANC was trying to take advantage of what could arguably be called a grey area in the law.
”One can argue that there is room for ambiguity which the courts have to clarify. The ambiguity the ANC is dealing with is that she was not incarcerated. I think they are hoping that the courts will give a generous interpretation of the law.”
Gutto criticised the ruling party for opting to the interpret the law in its favour and leaving the IEC to resolve a thorny issue, since it has to vet all party nominations.
”The ANC is putting itself in such a place that the IEC now has to take the decision,” he said.
”If the IEC were to bend backwards to allow the ANC’s interpretation, which in my view is suspect, the IEC will be open to a challenge by anybody acting in the public interest. It could be a political party or a member of the public.”
He said the Constitutional Court would then have to rule on Madikizela-Mandela’s case as a matter of urgency, before the country goes to the polls on April 22.
The provisional election list is published to give the public an opportunity to lodge objections to candidates’ nomination with the IEC.
Objections have to reach the electoral commission by fax or email by Wednesday. — Sapa