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.
The 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.
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 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.
"I 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.
Meanwhile, 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 completed.
"That 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 Gutto noted.
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.
She was 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 fine.