The jury is still out on whether Winnie Madikizela-Mandela’s criminal record will prevent her from running for Parliament in the upcoming elections, the African National Congress (ANC) said on Monday.
ANC spokesperson Carl Niehaus confirmed that the ex-wife of former president Nelson Mandela was still on the ruling party’s nominations list for the National Assembly.
He said the ANC would scrutinise the Constitution’s criteria for MPs to see whether her suspended sentence for fraud disqualified Madikizela-Mandela, but personally suspected it did not.
”I have to look at it carefully, but the way I see it she would qualify [to become an MP]. She did not go to jail,” Niehaus told Sapa.
”But I’m not 100 percent sure,” he added.
Legal experts challenged his interpretation.
By law a person sentenced to more than 12 months in jail without the option of a fine is barred from Parliament and the provincial legislatures for five years after the sentence had been ”completed”.
This last week saw former ANC chief whip Tony Yengeni’s name wiped from the Northern Cape and Gauteng nominations lists.
Niehaus said it was clear that Yengeni’s four-year jail term, handed down in 2004 for fraud related to the multibillion-rand arms deal, had disqualified him from becoming a lawmaker.
He said Yengeni had accepted the fact and withdrawn his name and hinted that the party expected Madikizela-Mandela to do the same.
”There has to be a decision from her as to whether she will stand or withdraw her name.”
Madikizela-Mandela was forced to quit as an MP and president of the ANC Women’s League in 2003 but still has a strong following in the party. She won more votes than any other candidate for the National Executive Committee at the ANC’s conference in Polokwane in December 2007.
In July 2004, she had a five-year sentence for fraud and theft reduced on appeal to three-and-a-half years for 43 convictions for fraud.
The sentence was suspended for five years and she never went to prison.
It was the second time the woman who was repeatedly detained by the apartheid regime and banished to Brandfort escaped imprisonment for a serious crime.
In 1991 she was sentenced to six years in jail for her role in the kidnapping and assault of Stompie Moeketsi, a 14-year-old suspected police informer who was found near her Soweto home with his throat slit.
On appeal that sentence was reduced to a fine.
Professor David Unterhalter from Wits Law School disagreed with the ANC that she could stand for Parliament.
He said he did not think Niehaus’s argument that she never went to jail for fraud ”is relevant from a legal point of view”.
”I think the more likely interpretation is that she is ineligible.”
Unterhalter said the ”best way to give content to this section of the Constitution”, in case of a suspended sentence, would be for the sentence to be considered as completed once the time for which it was suspended had lapsed.
In Madikizela-Mandela’s case, this would only be in July this year.
Mary Nel, a law lecturer at the University of Stellenbosch, said the case pointed to a possible grey area in the Constitution.
”I’m not sure,” she said.
”But if one looks at the wording of the Constitution, the mere fact that she was sentenced to more than a year in jail should disqualify her.”
She said the ANC’s reasoning that Madikizela-Mandela may stand for Parliament because she did not actually spend a year in prison, was disingenuous, because if that were the case Yengeni too could become an MP.
He was freed on parole after serving less than five months in jail.
”He was in prison for less than a year, so if it is good for her it should be good for him too,” Nel said.
Niehaus said he believed that the legal puzzle would be resolved by the ANC’s list committee by the end of the week. — Sapa