The decision by South Africa's ruling
African National Congress (ANC) to include the wife of former President Nelson
Mandela as a possible nominee for Member of Parliament in the upcoming election
is generating intense criticism.
ANC announced Monday that Winnie Mandela was on its short list of prospective
nominees to stand on the party's ticket in the general election. But some
attorneys have sharply condemned the move, saying she is barred to be a member
of parliament due to her criminal record.
South Africa's 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.
Constitutional law Professor
Shadrak Gutto told VOA the ANC might have a dilemma if Winnie Mandela is chosen
to represent the party in parliament.
think it is overall around the question that the African National Congress has
been accused by many both in terms of political opposition, but also the media
and in academia and other structures in society that it (ANC) has the tendency
in the last three years also to be really targeting attacks at the judiciary
and prosecution services and other structures that enforce the law by depicting
them as being counter-revolutionary and therefore reactionary and so on and so
forth. Simply because certain key members, including the current president of
the African National Congress Jacob Zuma are also facing charges," Professor
Gutto pointed out.
under South Africa's 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
is what the constitution expressly says and that remains the fact that you
cannot remain in parliament if you are a parliamentarian who has been found
convicted with an offense. And the sentence is one of 12 months or more of
imprisonment without an option of a fine, then you have to leave parliament or
lose your seat. And if you are somebody who wants to stand for election, with
that kind of tainted background you cannot stand," Professor
He said some South Africans
believe Winnie Mandela should not be considered by the ANC as a member of
parliament due to her criminal background.
"This is really where people
saying that apart from Winnie Mandela who was found guilty of having
participated in a scheme that led to the death of somebody. Although she didn't
serve her sentence in jail, but the mere fact of conviction means that she is
somebody who should be regarded as falling within the category that the
constitution is talking about," he said.
Professor Gutto said the
Constitutional Court might be forced to adjudicate a possible legal challenge
to Winnie Mandela's eligibility ahead of the upcoming election.
"It's going to be a tough
one and what I presume might happen if there is a legal challenge is that the
matter may go to the High Court. And then whoever feels aggrieved by the
decision of a High Court may want to petition the Constitutional Court, which
is the highest court on constitutional matters directly. And the Constitutional
Court may entertain such an application because of the urgency of the matter so
that the matter is concluded before elections actually take place," Professor
Gutto pointed out.
Meanwhile, the ruling ANC says it would
examine the constitution's criteria for Members of Parliament to ascertain
whether Winnie Mandela's suspended sentence for fraud should disqualify her.
Winnie Mandela was in July 2004 sentenced
to five years over fraud and theft charges but the charges were reduced on
appeal to three and half years for 43 convictions for fraud. The sentence was
however suspended for five years, which allowed her to stay out of prison.
also sentenced to six years in jail in 1991 over her role in the kidnapping and
assault of a 14 year-old suspected police informer whose body was found near
her Soweto home with his throat slit. On appeal that sentence was reduced to a