‘Mantšali Phakoana
Five opposition parties are leaving no stone unturned in their quest to have a tribunal set up to probe the fitness of the Independent Electoral Commission (IEC) commissioners to hold office.
This after the High Court last week failed to order the Council of State to advise the King to establish a tribunal to probe the commissioners’ fitness in office.
The court ruled that the failure by the Council of State and His Majesty to address or deliberate over the parties’ calls for the establishment of such a tribunal was unconstitutional.
However, the court did not order the respondents to address this as requested by the applicants.
The court further dismissed the rest of the applicants’ prayers, further ordering each party to bear its own costs.
The Basotho Action Party (BAP), Democratic Congress (DC), All Basotho Convention (ABC), Basotho National Party (BNP) and Popular Front for Democracy (PFD) had approached the court in August this year seeking it to compel the Council of State to advice the King to establish a tribunal to investigate if the three IEC Commissioners; Mphasa Mokhochane, Tšoeu Petlane and Karabo Mokobocho-Mohlakoana are fit to hold office.
The Council of State, His Majesty King, minister of law, justice and parliamentary affairs (Nthomeng Majara) Attorney General (Rapelang Motsieloa) chairperson of IEC, (Mokhochane) Commissioners Mokobocho-Mohlakoana and Petlane, IEC, Speaker of National Assembly (Tlohang Sekhamane) and President of Senate (‘Mamonaheng Mokitimi) are cited as respondents in the case.
In their prayers, the parties had asked the court to direct His Majesty King to cause for the establishment of a tribunal to probe the fitness of the commissioners to hold office of IEC commissioners in terms of Section 66 (11) read with (12) of the Constitution of Lesotho (As amended) within 21 days after the grant of the order.
Alternatively, the applicants asked the court to direct the Council of State to adjudicate and deliberate over the complaints by the parties.
The parties are discontent with IEC’s performance and want the commissioners removed from office.
The BAP has been relentless in its attempt to have a tribunal established to investigate the commissioners.
According to the court papers, on January 13, 2023, BAP wrote a letter to the Council of State citing “grave constitutional breaches” and failure by the IEC to organise by-elections and local government elections.
The party also accused the electoral body of failing to release voters’ lists timeously and miscalculation of proportional representation seats.
In his response letter dated February 2, 2023, acting senior private secretary to His Majesty, Mphale said the BAP’s request was receiving ‘active consideration in consultation with relevant government stakeholders to make sure that a proper action and reaction is provided on the issues raised in the letter.
On March, 21, 2023 BAP wrote a follow-up letter which Mphale responded to on March 29, 2023, assuring the party that the matter was receiving serious attention and that consultations were at an advanced stage.
“He (Mphale) promised to notify BAP about the outcome of the consultation very soon. Despite the assurance from Mphale, there was a two months hiatus until BAP engaged its attorneys to write another letter.
“On 16th May, 2023 the (BAP) legal representatives issued a letter to the Council providing additional grounds in support of the request for establishment of a tribunal.
“The legal representatives bemoaned the delay in addressing their client’s request and concluded the letter with a forewarning to stage application for a writ of mandamus if the Council did not act within fourteen days. Obviously, the Council failed to heed the warning,” reads the judgement.
Delivering judgement on October 5, 2023, High Court Judges; Realeboha Mathaba, Hopolang Nathane and Tšeliso Mokoko said the Council had acted unconstitutionally by failing to address the BAP’s concerns.
Unsatisfied with part of the court’s ruling, the parties have indicated that they are likely to appeal the case.
BAP leader, Nqosa Mahao said part of the judgement was satisfactory since it acted in their favour.
“In a case where the court has declared that the act of the Council of State is unconstitutional, we are happy because that is actually what desired.
“However, we are yet to meet with our lawyers to deliberate on whether we appeal other orders or we wait for the Council of State to act on its own accord in establishing the tribunal,” he noted.
“The matter in question was the establishment of a tribunal to probe the fitness of the IEC commissioners in offices and it still stands as such. If need be, we will go further to the Court of Appeal,” Mahao indicated.
ABC secretary general, Lebohang Hlaele this week also said they were yet to meet their lawyers to discuss the possibility of appeal.
He said the fact that the court could not order the Council to advice the King to establish a tribunal calls for more legal action.
“The Court has ordered that the Council of State’s act of ignoring our petition is unconstitutional but, at the same time the Court did not agree with us that it should direct the Council to advice the King to establish a tribunal; this means our concern still stands.
“We will deliberate a way forward with our lawyers, but definitely we would want the matter solved,” Hlaele added.
