Staff Reporter
MOST Basotho and everyone else interested in the affairs of this country are probably wondering what the Independent Electoral Commission (IEC) really meant last week when it announced the suspension of operations at its Maseru headquarters due to suspicions that one of its staffers had contracted Coronavirus (Covid-19).
What operations could these be? What exactly do IEC staffers do at their offices on a daily basis ever since the IEC was rendered dysfunctional more than a year ago by the Constitutional Court’s failure to hear and deliver judgement in the June 2019 Constitutional Court application by the Transformation Resource Centre (TRC) and two others for the nullification of the appointment of Workplace Solutions as the consultants in the recruitment of new IEC commissioners?
The TRC’s co-applicants are IEC hopeful, Maieane Khaketla, and the African Ark party. The latter is one of the political parties involved in the processes to recruit and appoint new commissioners.
The applicants want the court to order the recruitment exercise of the new IEC commissioners to be re-done with the active participation of civic groups through a public interviewing process. They also want a final order which nullifies the appointment of Workplace Solutions as the consultants in the whole recruitment exercise.
They contend that Workplace Solutions was awarded the tender without following proper bidding processes in contravention of the Public Procurement Regulations of 2007. It has been suggested the firm did not even have a tax clearance certificate. The Council of State has been interdicted against advising His Majesty King Letsie III to appoint new IEC commissioners pending the finalisation of the TRC and others’ application.
The case was filed as an urgent application in June 2019 but more than a year later there is still no movement on the application.
No reasons have been advanced for the lack of movement on a case affecting such a vital institution.
The lack of progress has rendered the IEC completely dysfunctional. Crucial activities such as the holding of by-elections and the delineation of electoral constituencies cannot be conducted in the absence of commissioners.
As analysts point out, the judiciary’s failure to expeditiously deliver judgements in seemingly straightforward applications such as this one has the effect of eroding public confidence in our justice system.
The analysts also note that by failing to do its job, the judiciary is also emasculating the IEC. The electoral body is one of the few state institutions with a good standing in the eyes of the nation and the international community due to its track record of delivering credible elections accepted by winners and losers alike.
However, it has been rendered dysfunctional by the failure to appoint new commissioners after the expiry of former commissioners Justice Mahapela Lehohla (former chairperson), Advocate ‘Mamosebi Pholo and Dr Makase Nyaphisi’s contracts in January 2019.
The Council of State cannot advise the King to appoint new commissioners until after the Constitutional Court has pronounced itself on the TRC and others’ June 2019 court application challenging the process of recruiting new commissioners by the political parties.
The absence of commissioners has prevented the IEC from holding by-elections to fill the vacancy that arose from the December 2019 death of All Basotho Convention (ABC)’s Makhoroana legislator, Lefu Hlomelang. The Democratic Congress (DC)’s Kolo constituency legislator, Putsoane Leeto, also died early this month after an undisclosed illness.
By-elections are constitutionally due within 90 days of a vacancy arising and in the case of Makhoroana constituency, this deadline has already been missed due to the Constitutional Court’s failure to speedily resolve the case affecting the appointment of new commissioners.
“It is sad that the IEC has been allowed to deteriorate (to a point of dysfunctionality),” University of Limpopo public law lecturer and constitutional law expert, Professor Hoolo Nyane, said in an interview with the Lesotho Times this week.
Prof Nyane said the courts’ failure to timeously deliver judgement in the IEC case had negative implications for constitutional democracy in Lesotho.
“There is disturbing pattern in Lesotho where state institutions have either disintegrated or have completely lost independence. This is quite sad because every institution created by the constitution serves a particular purpose in the broader constitutional ecosystem.
“For instance, in terms of the law, once a vacancy appears in the National Assembly, on a constituency seat, a by-election must be held within three months. The period provided for by the law has long elapsed (in the case of the Makhoroana constituency).
“There is now a second vacancy (in the Kolo constituency). This (failure to hold by-elections) raises serious questions about the country’s commitment to constitutionality, rule of law and representative democracy. When a country can no longer follow the constitution in the management of public affairs, the catastrophe is inevitable,” Prof Nyane said.
He blamed the dysfunctionality of the IEC on the courts’ failure to expeditiously hear and deliver judgement in the TRC and others’ application. He said the fact that the IEC case has been pending for over a year in court does not reflect well on the judiciary.
“There is a disturbing judicial practice in Lesotho that interim court orders are tantamount to final court orders. The TRC case on the appointment of IEC commissioners is a sad symptom of this reality of judicial practice in Lesotho.
“It is inconceivable how such an important constitutional matter can be pending indefinitely in the courts. By their nature, constitutional cases are urgent and this particular case is even more urgent especially when an institution of such constitutional significance as the IEC has been rendered dysfunctional,” Prof Nyane said.
National University of Lesotho (NUL) political science lecturer, Tlohang Letsie, concurred saying the IEC’s critical role in fostering democracy has been affected by the lengthy delay in the TRC court application. Dr Letsie said voters in the affected constituencies have been denied their constitutional right to representation in parliament.
He said the entire electorate’s rights will be compromised as voters’ roll cannot be updated in time for the 2022 elections and the constituencies cannot be delineated in the absence of IEC commissioners.
“We have gone for more than a year without a functional IEC and this means that when we hold elections in the near future, we will be doing so with a bad voters’ role,” he said.
The national director of the Lesotho Council of Non-Governmental Organisations (LCN), Seabata Motsamai, said the Constitutional Court should not have allowed such an urgent IEC case to go a whole year without being heard.
“The LCN concedes that our judiciary is handicapped as a result of being short-staffed. However, due to its crucial role in good governance, the IEC case should not have been allowed to drag on for this long. There is a lot of work that the IEC still needs to do (holding by-elections, updating the voters’ roll and delineating constituencies among other things) for the furtherance of democracy and it cannot do this work without commissioners. Without the commissioners, the IEC is virtually non-existent,” Mr Motsamai said.
He said the Constitutional Court should have foreseen the consequences of delaying the TRC application and treated the case with the urgency it deserved. He accused the court of dragging its feet on the matter while giving priority to political cases.
Another NUL education lecturer, Mahao Mahao, criticised the Constitutional Court for delaying the TRC court application, saying the resultant crippling of IEC operations had deprived the Makhoroana constituency of their constitutional right to parliamentary representation.
“What the government needs to do now is to ensure that the court treats the TRC application as an urgent matter and that it is resolved without further delays. The court must now hear the application even outside its normal hours of operation. This is a case that affects people’s rights to parliamentary representation and affects the smooth running of the IEC. It should not have been delayed this long,” Dr Mahao said.
The judiciary must therefore get its act together and expeditiously deliver judgements in urgent applications such as the TRC application. As the consequent paralysis of the IEC shows, the failure of the judiciary to do its work affects other key state institutions’ ability to do their own work. Democracy suffers and the biggest losers are the electorate who are deprived of their constitutional rights to representation.
