‘Mantšali Phakoana
A group of civil society activists has blasted the Council of State for ignoring their request to advice King Letsie III to establish a tribunal to investigate the Independent Electoral Commissioners’ (IEC) fitness to remain in office.
The trio noted that had the Council of State responded to their letter dated January 3, through which they had asked it to intervene, the matter would have not escalated to court.
This follows a legal application filed by five opposition parties in the constitutional court last week seeking it to compel the Council to advice the King to establish a tribunal to investigate if the three IEC Commissioners; Mphasa Mokhochane, Tšoeu Petlane and Karabo Mokobocho-Mohlakoane are fit to hold office.
The parties are: the Basotho Action Party (BAP), Democratic Congress (DC), All Basotho Convention (ABC), Basotho National Party (BNP) and Popular Front for Democracy (PFD).
The activists, Kananelo Boloetse, Motsamai Mokotjo and Resetselemang Jane share similar sentiments with the aforementioned parties.
In a joint statement this week, the activists said they wanted a tribunal to be set up to probe if the three IEC Commissioners were fit to hold office.
The vote of no confidence in the commissioners came after the IEC acknowledged in October last year that it had declared results for four proportional representation (PR) seats that had been wrongly calculated, post the general elections.
The IEC had admitted to wrongly allocating three PR seats to the DC and one to the Alliance of Democrats (AD). After realising its mistakes, the electoral body subsequently asked the High Court allow it to allocate the four seats to the Basotho Patriotic Party (BPP), BNP, United for Change (UFC) and Lesotho People’s Congress (LPC).
The commissioners were appointed on December 1 2020.
The opposition parties’ constitutional court application follows a string of letters to the Council of State calling for the establishment of a tribunal since the beginning of this year without success.
The activists believe that the legal move might force the Council to fulfil its constitutional duties and also be transparent and accountable in its decision-making processes.
“The issues raised in this case and our letter are of immense significance to the democratic fabric of our nation.
“We firmly believe that the electoral process must be conducted impartially, free from undue influence, and in compliance with the highest ethical standards.
“We trust that the court will conduct an unbiased and thorough examination of the case, considering all arguments and evidence presented, and deliver a just and fair verdict,” they said.
Quoting American historian and columnist Jeffery J. Lloyd, known as Aberjhani, they further wrote, “Democracy is not simply a license to indulge individual whims and proclivities.
“It is also holding oneself accountable to some reasonable degree for the conditions of peace and chaos that impact the lives of those who inhabit one’s beloved extended community.”
The petitioners accused the IEC commissioners of incompetence and violating voters’ rights after several people failed to vote during the October 7, 2022 elections because their names were not on the voters’ roll.
They also slammed the Council of State for failing to act on their requests to probe the commissioners.
The Council of State, King Letsie III, Minister of Justice, Law and Parliamentary Affairs Justice Nthomeng Majara, Attorney General Advocate Rapelang Motsieloa, Mphasa Mokhochane, Karabo Mokobocho-Mohlakoane, Tšoeu Petlane, the IEC, Speaker of the National Assembly Tlohang Sekhamane and the President of the Senate Mamonaheng Mokitimi are respondents in the case, respectively.
In his founding affidavit, BAP leader, Nqosa Mahao, submitted that the IEC had failed to execute its mandate of being independent, transparent and accountable. This had forced the parties to rush to court, he noted.
Mahao said Lesotho’s experience shows that a lot of gains could have been achieved if there was an independent body managing elections. Also, the outcome of the October 2022 elections might have been accepted by all those who contested.
The absence of an independent, competent and well-structured Electoral Management Body (EMB) bore the potential of affecting the proper administration of the state, he said.
“In addition, the grave mistakes and maladies which have beset the IEC in recent years call for prompt intervention before courts of law as we have done as applicants herewith.
“The failure of the IEC to live up to its name through its agents, fourth to sixth respondents (Messrs Mokhochane and Petlane as well as Dr Mokobocho-Mohlakoane) bears the potential of attracting dire consequences,” Mahao argued.
He added that the IEC was bound to have held local government elections last year and its failure to do so had resulted in a constitutional breach.
Mahao further indicated in his affidavit that the electoral commission was in breach of its constitutional obligation stated in Section 66A (1) (a) which dictates that the IEC should embark in the process of ensuring that local government elections are held.
“No formal explanation has been given by the IEC for its failure to conduct the aforesaid elections.
“I aver that this is not a trivial issue because it goes to the root of the foundation of society, the exercise of franchise rights embodied in the supreme law of the land,” he noted in his court papers.
The parties also accused the IEC of failing to discharge its duties to delineate delimitate constituencies.
The DC had successfully challenged the IEC’s constituency delimitation exercise before the Constitutional Court in August last year.
The court had ordered the commission to rectify the 20 constituencies before the October 7, 2022 general elections.
Mahao cited in his affidavit that the DC case was another testament of the commissioners’ incompetence.
“The embarrassing defeat of the IEC (by the DC) in the relevant case served to illustrate the incompetence of the commissioners and by extension, institutional incompetence of different sorts.
“This was a serious issue for consideration and an utter breach of the constitutional obligations imposed on the 5th to 7th respondents and by extension the IEC. Clearly, there is a judgement of the Constitutional Court which gives credence to the notion that the IEC under the oversight of 5th to 7th respondents, was in breach of its constitutional obligations in terms of section 66A (1) (c).
“Thirdly, and as if that was not enough, yet another case was launched by the IEC itself for self-review in which it had admittedly miscalculated the proportional representation seats in line with the statutory obligations conferred by section 104 of the National Assembly Electoral Act,” he argued.
DC secretary-General, Tšitso Cheba, also filed an affidavit in support of Mahao’s claims.
Cheba claimed his party had suffered immensely due to the incompetence of the three IEC commissioners.
Cheba also accused the commission of failing to hold political parties accountable for their campaigns’ spending.
He lamented the ruling Revolution for Prosperity (RFP) had spent substantial sums of monies in campaigning for the October 7 2022 elections but was never probed by the IEC.
“The experiences of the Democratic Congress under the stewardship of the 5th to 7th respondents, have left bitter wounds and put the institution of the IEC into disrepute.
“The apparent failures of the IEC under the stewardship of the 5th to 7th respondents have been laid bare by the recent elections.
“There is an obligation for all political parties to account for both private and public-funded campaign funding. The Revolution for Prosperity, which is leading the current government, has evidently spent substantial sums of money owing to the calibre of businessmen in their crop,” he submitted in his affidavit.
BNP leader, Machesetsa Mofomobe, PFD leader Lekhetho Rakuoane, and ABC secretary-general Lebohang Hlaele have also filed affidavits supporting the application.
Contacted for comment this week, IEC Commissioner Patlane said he was aware of the case.
He explained that the applicants were not suing him as a person or in his capacity as the IEC Commissioner, but the Council of State.
However, Petlane indicated that should a tribunal be established and invite him to present his case, he would definitely abide.
“It should be understood that I am not the one being sued in this case, but if called before a tribunal, I would be able to respond in my two capacities. I am ready to present my case before the tribunal,” he said.
“The technically of this matter is that the applicants are complaining about me but they are not communicating to me yet,” he added.
For his part, Mokhochane could not comment but rather referred this publication to either the Director of Elections, Mpaiphele Maqutu, or the IEC lawyer.
“This is a legal matter so please contact the director of elections or the IEC’s lawyer,” Mokhochane said.
Maqutu on the other hand said the matter was being dealt with by the Attorney General, Rapelang Motsieloa.
