LESOTHO’s Independent Electoral Commission (IEC) recently erupted in fights which the commissioners blame on the Thomas Thabane led government’s overtures to control its work. In a recent interview with the Lesotho Times, Makase Nyapisi, one of the IEC’s three commissioners, accused the government of seeking to compromise the electoral body’s independence by exerting “undue influence” over it to the detriment of democracy. In the interview below Lesotho times’ Senior Reporter Pascalinah Kabi (LT) speaks to Dr Nyapisi (MN) about the challenges bedeviling the IEC including fights with the now suspended director of elections, Letholetseng Ntsike.
LT: There are a lot of stories making arounds concerning the IEC, what is really happening?
MN: Let me give you a bit of a background. All commissioners are appointed through a process in which parties registered with the IEC submit names to a sub-committee of the parliamentary caucus. The candidates go through some screenings called psychrometric tests by an independent consultant, and the second stage would be for them to have an interview with the subcommittee of the parliamentarians.
After the interview, that subcommittee presents five names to the Council of State which would then choose three people – chairperson and two commissioners. After that, His Majesty King Letsie III gazettes the appointment of the commissioners for five years. The commissioners’ contracts are eligible for renewal for a further five-year term.
Now in the constitution, it is stated that six months before the contract expires, commissioners can express availability and their willingness to continue for a further five-year term. In our particular case, we expressed that desire to serve another five-year term and showed our availability. We followed the process and wrote to the Government Secretary (GS), who is responsible for all the contracts of the government, in June 2018. He replied to our letters in August 2018, stating that the he is being directed by the government to inform us that our contracts are not going to be renewed.
We questioned this because we felt that the government is not the appointing authority for commissioners. We then called leaders of the political parties in November last year and informed them about this. They indicated that they were surprised that the government had done this without their concern or discussions with them. They requested that the letter of the GS should be rescinded and the Government Spokesperson at that time indicated that he would instruct the office of the GS to withdraw the letter, it did not happen.
Our contracts ended on the 7th of January this year. When nothing happened, we then wrote to the Council of State who advise His Majesty on our availability. Up to now, nothing has happened. However, we indicated to the Council of State that they should know that we are still legally in the office and still performing our duties.
You should note two important things here. One is that the positions of the commissioners are determined by the constitution and they fall under Statutory Bodies and there is not supposed to be a vacuum at any given time.
So, the government did not do the due process of informing the political parties that we have expressed our wish to extend our contracts. The legal process was not followed at all hence why the political parties were surprised that this has happened and requested that they should be included in the process.
So, the process was handled badly. We then had an unfortunate situation where the Director of Elections did not pay the salaries of our drivers and secretaries. We however, got our salaries but the benefits that accrued, those which are enshrined in the constitution and the statutory salaries act, were stopped and we brought it to her attention that she cannot do that.
She has neither power nor authority to terminate our benefits. If the employer knows that we are in office; we have written to him; he said he is addressing the matter; we are still in the office and still getting paid, it follows that even our benefits should still be there because they form part and parcel of the contract but the Director in her own wisdom felt that since we don’t have our contracts, she could not pay our benefits.
We informed her that she has no powers to do that but, in her wisdom, she stopped them. We instructed her to pay them and she said she is going to think about it. She thought about it for a day and she said “I am not going to abide by your instruction, I know that I am being insubordinate but I am willing to bear the consequences of expulsion”. Then we sat as a commission and said this is insubordination and consequently, we suspended her pending a disciplinary action. She received the letter on Monday 4th March 2019 she came back to us and said she is not going to leave, we said she should write, she minuted on the letter of suspension. That is the situation as it stands.
LT: You said it yourself that your contracts expired on the 7th January 2019 and I did not hear you telling me that your employer has expressed the desire to extend your contracts in writing.
MN: No, there has not been any writing, it has been through discussions. The gazette that has put us in place is still there and it can only be revoked by a new gazette. So, unless we get a gazette revoking the one which appointed us, we remain commissioners.
LT: But is it not weird that you are still continuing to be in the office yet your contracts have expired and Dr Letholetseng Ntsike uses the same argument that you should not be in office because your contracts have expired.
MN: No, I am not using the same argument of the contracts but I am saying that a contract is just a means of administrative issues. The fact that they have not written informing us that they are terminating our contracts means we have a legitimate expectation. If I tell you my intentions to continue and you keep quiet, it simply means that I have a legitimate expectation that you have accepted. That is the point. However, that is an issue that can be legally discussed and be argued whichever way but our point is that it’s on the basis of a legal expectation that, as stipulated in the law, we abided by the six months rule which says we should express our desire and availability six months before the contract expires. When the appointing authority does not respond within that period, the legal expectation is that they concur; it cannot be that they don’t concur; it cannot be that the silence does not mean that they do not concur because if indeed they did not concur, then they should say so.
LT: But why did you not engage the political parties on the matter in June 2018? Why did you wait until November of the same year?
MN: It is not us, it is not within our realm to engage the political parties, the system is the one that does that. The system should have done so but it did not. This is why as late November; the political parties were surprised that due process had not been followed. It is not our responsibility to start the process. We started (writing to GS) the process in light of what our contracts say, then the next person should do that.
LT: There are allegations that the Dr Ntsike was fired after she refused to authorise or sign for your trips for a workshop in Cape Town, South Africa. What is your response to that?
MN: No, it is a different story altogether. It is true that we have been invited to Cape Town by the Cambridge Commonwealth Electoral Commission to give a presentation on the challenges of managing electoral bodies in Southern Africa.
The chairperson and myself are supposed to go on Sunday (10 March 2019) so with this debacle of not paying the salaries, she decided not to make provisions for that trip because she does not recognise us. Despite the fact that she said she does not recognise us, she told us that she is going to Botswana for a meeting. We allowed her to go there. Even after we suspended her, she wanted to brief us about what she did in Botswana.
The fact that she wanted to brief us means that she recognises us but we said “no you are suspended with immediate effect”.
“That is water under the bridge, giving you a hearing would mean that we recognise you and the suspension is not valid”.
So, we refused to have a report from her because it was after we suspended her.
At around 11 am (Monday 4th March 2019), we told her to hand over the key to the chairperson Justice Mahapela Lehohla by 1 pm to allow her to take her goods in a decent way. She however, came back and said she is not going to go out of the office. We informed the police about this situation and they came and told her to leave the office. The Director of Elections is appointed by the Commissioners and her job description clearly spells out her conditions of service. We are given the mandate by the constitution to hire the personnel in the IEC, it is the constitutional right that we are the ones who will hire the staff and they are accountable to us and nobody else.
That is a fact, it is in the constitution, and even her contract states that she will be answerable to the commission. It further spells that she is bound to abide by the decisions of the commission and failure to do that is regarded as insubordination. We are called an Independent Electoral Commission because we are completely independent and just like the judiciary, we are not part of the executive. So, the process should have happened but now it has become so messy. The situation has reached the unfortunate stage which could have been procedures been followed diligently and honestly.
LT: It seems there has been some tension between the commissioners and the director. How has been the working relationship between the director and the commissioners?
MN: There has not been any tension and that is why we have been treating her with kids’ gloves by giving her opportunity to look at her contract. She even acknowledged that what she is doing is insubordination and said it in writing. So, we were surprised that it looked as though she has powers that are coming from somewhere. She is basing her legal stand on the sense that we do not have contracts but she is misguided because the contract emanates from the gazette. The gazette is still valid and we are still receiving our salaries which means that the system knows we are there but in her own wisdom. She feels that she has got the right to curtail our benefits so, she must be leaning on an unknown source of power that we are unaware of. Minuting on the letter of suspension just shows lack respect and of administrative skills.
LT: Why do you think government chose not to follow the procedures as you have outlined them to us?
MN: I don’t even want to speculate but it’s inefficiency, lack of administrative skills and respect for what should be done by such an office. It is complete inefficiency.
LT: Dr Ntsike’s suspension comes at the time 130 IEC officers have launched a court case in the high court on human resource related issues and this might send panic that the foundations of the leadership of the IEC are shaky. What is your reaction to that?
MN: There are a number of things that are not right in the IEC but that is a completely different issue. We are dealing with a different issue here and I don’t think they should be mantled together but it is worrying that in an institution like this, employees are doing court case against the institution. Since they are already in court, I don’t want to get into it because I would be jeopardising the proceedings of the court case.
Everybody has got a right, when they are aggrieved, to seek solutions from the court but as I said, that is a different matter altogether. In the same way if the director feels aggrieved by our decision, she can seek recourse from the courts and the courts will decide. If the courts say that her suspension is illegal and she should be reinstated, we will do so.
LT: With the situation in the IEC right now, should there be elections, do you think the IEC is ready discharge its mandate of conducting credible elections?
MN: I don’t want to speculate but it is a requirement that the IEC as an institution should, at any given time be ready to conduct elections. It is by law that they are ready at any given time provided that the funds and the means are there. In our tenure we have implemented two snap elections and local government elections of which everybody – both local, international and sub-regional observers – give us credit for conducting credible elections.
So, that is a plus not only to the commission but to the organisation and the staff that within five years we have conducted two snap elections. The elections have always been free and fair and we never experienced incidences of violence. That is how credible this institution is. It is a marriage of other factors that made it successful including the staff and the way we engage with politicians and the public for the benefit of the country. So, I cannot say that because of what is happening, we are not going to hold credible elections but the atmosphere may not be conducive because as it stands, it is tense. If we are to go to elections in this situation, we can always get an acting director but people who are aggrieved by the situation in the commission could embark on go slow.
But one would hope that, for the sake of the nation, everyone puts their personal interests behind and look at the bigger picture despite their grievances.
LT: What do you make of the Office of the Attorney General’s legal opinion on your employment status?
MN: I am not a lawyer, I don’t even want to interpret the legal actions of the Attorney General. I am the least person who can (interpret) but I think there are certain aspects of it which are questionable.
In my humble opinion, I think he did not give a direction. He did not say then you should do this, he did not give the direction. I am not a lawyer, I may be wrong but reading the opinion, I don’t think he gave a direction as to what has to happen. So, we are still left wondering what needs to be done.
LT: Going back a little bit, you said you have a legitimate expectation that your contracts would be renewed.
MN: We are sitting here on legal, legitimate expectation and that is standard procedure. When you say legitimate expectation, then they can argue it in court to say whether it is legal expectation or not and the courts will make a decision as to whether that consulates and expectation.
LT: Despite your legitimate expectation that your contracts would be renewed, should the State Council advice His Majesty not to renew your contracts after all the processes you have tabulated have been followed, will you leave peacefully?
MN: Oh yes, I will leave peacefully. When the due processes have been done, I will leave gladly. There is nothing else that I aspire except to serve this country even in my most humble manner of integrity. That is my role which I have tried to do in all the positions that I have been honoured to hold from being an ambassador up to now. It has been a great honour and privilege to serve in those positions and many others.
LT: Anything else you would like to add?
MN: It is unfortunate that, notwithstanding what I have said about conducting these three elections which all the political parties and the leadership of the political parties received accolades for, that when the time comes now to make the decisions, they shy away and use hearts instead of using sense to address the situation. Once you don’t use reason and use your hearts to solve a national problem, then you will get into problems and serious ones for that matter.
We have received accolades from international organisations for managing elections, so if indeed they feel that me or the whole commission should go and follow due process, there is nothing wrong with that. I will not question it but the way it has been handled has not been correct. I will not be bitter at all, I have no issue at all but the environment is not conducive for a good working relation, it puts a bad picture on the institution.
It shows how when government or politicians want to derail the democratic principles and foundations of institutions, how they want to control them, this is typical example I believe where they are heading in that direction and it is unfortunate. It should not happen because once you want to influence institutions that are supposed to be independent and help you in entrancing democracy and you want to control them, it is not good.
(These are) controlling tactics…wanting to control…is bad, we have seen it with the judiciary, unfortunately it is has now come back to this one and that is just unfortunate and it will not get us anywhere. We thought…with what has happened so far, things will run smoothly but it shows that there are other hidden agendas somewhere that we don’t know.
LT: Are you saying that the government is trying to control this institution?
MN: Every government would like to control the institution that runs the elections. They like to do so and this is unfortunately an attempt to do so because if it has not been such an attempt, due processes would have been followed. The processes are clearly laid down but due process was not followed.
LT: Is this the first time or the first government to have attempted to control the IEC?
MN: Oh, it is not the first time. It is not only in Lesotho by the way, it is all over the world but we had gone a long way as Lesotho in trying to give the electoral commission truly independence. We are still truly not independent by the way. Our independence is partial, we are not truly independent and we are hoping that with the reforms that are coming the institution will be truly independent.
Ideally and I think this is now something that is different, we should not have the Ministry of Law and Constitutional Affairs playing an oversight role on us, that is wrong but it is convenient for the government to have it like that. In actual fact, like other commissions, we should be answerable to parliament, the finances of this institution should be not directed from the Ministry of Finance. The IEC should be able to have its own budget and is accountable for their own budget and discharge its mandate but it is not like that. We are still being given subventions on a quarterly basis from the Ministry of Finance. This is disturbing, it is controlling and these are measures meant to control.