…accuses it of undermining its independence
Pascalinah Kabi/Mohalenyane Phakela
LESOTHO’s Independent Electoral Commission (IEC), which is widely acclaimed for running credible elections over the years, is now in turmoil.
Its director of elections was suspended this week while one of its commissioners launched a scathing attack on the government, accusing it of seeking to undermine its independence to the detriment of Lesotho’s democracy.
The IEC has run elections which have resulted in changes of governments on at least three occasions since 2012, a rarity in Africa where sitting regimes often cling to power by manipulating their electoral commissions. Successive elections presided by the IEC, which is led by former chief justice Mahapela Lehohla, have all been acknowledged as free and fair by international bodies.
But Makase Nyapisi, one of the IEC’s three commissioners, now accuses Prime Minister Thomas Thabane’s government of seeking to compromise the electoral body’s independence by exerting “undue influence” over it to the detriment of democracy.
Dr Nyapisi made the allegations in an exclusive interview with the Lesotho Times this week. He spoke to this publication in the wake of a power struggle within the IEC which has seen it suspending its director of elections, Letholetseng Ntsike, for alleged insubordination. The three IEC commissioners are chairperson Lehohla, Advocate ‘Mamosebi Pholo and Dr Nyapisi.
Dr Nyapisi said the IEC had decided to suspend Dr Ntsike after she defied the commissioners’ order for her to process payments for their incentives and the salaries of their drivers and secretaries. He said Dr Ntsike’s alleged defiance was a clear indication that she was being influenced by “powers that are coming from somewhere else”. But Dr Ntsike has in turn hit back saying she could not take orders from the commissioners’ as their mandates had expired and they had not been renewed.
Apparently, the Thabane coalition has refused to renew the three commissioners’ contracts despite their splendid work in running elections which have seen the regular changes of governments in Lesotho. The commissioners have in turn not vacated office, arguing that the matter of the renewal of their contracts had been mishandled by the Thabane coalition.
It is not clear why the Thabane administration has opted to boot out the three commissioners when the Prime Minister’s return to power could be attributed to their integrity in running credible elections.
At the heart of the dispute between the commissioners and the government is the latter’s alleged failure to inform the country’s political parties about their express request to have their contracts renewed after they expired on 7 January 2019.
The government, it seems, had already decided against the renewal of their contracts. It now maintains that they should not be in office. It is on that basis that Dr Ntsike refused to process the payments ordered by the commissioners.
But as far as the IEC commissioners are concerned, it is not for the government alone to decide whether or not their contracts should be renewed. They say the government’s role is limited to forwarding their desire to have their contracts renewed to all political parties and thereafter the Council of State for final decisions but this had not been done.
This, according to Dr Nyapisi, is due to the government’s desire to control the IEC by determining who is appointed to the electoral body and ensure the placement of pliable proxies.
Dr Ntsike was evicted from her IEC offices in Maseru on Monday by the police after her suspension the same day pending a disciplinary hearing.
The IEC commissioners suspended Dr Ntsike for what they termed “serious insubordination” after she allegedly defied orders to process payments of their incentives as well as salaries to their support staff.
The commissioners’ drivers and secretaries have not been paid their monthly salaries following the expiry of their bosses’ contracts in January.
Dr Ntsike’s suspension letter which was signed by Justice Lehohla states that “the commission found the import of your memo (refusing to process the payments) as nothing but serious insubordination especially when we had discussion with you on this matter on the 19th of February 2019 where we tried to explain to you that we are still in office and our employer is aware of this fact”.
“Notwithstanding this, you wrote the aforesaid memo in which you vehemently refused to take the commission’s instructions. This resulted in two of the officers attached to the office of the chairperson not being paid their salaries for two months and commissioners’ cell phones being cut because you could not effect payment on the usage of the same,” Justice Lehohla said.
He said that the commission had therefore resolved to suspend Dr Ntsike from office with effect from 4 March 2019.
“The commission has therefore decided to take disciplinary action against you and suspend you from your official duties on the grounds of the aforesaid insubordination with immediate effect. This suspension remains in force until the matter has been finalised,” part of the letter states.
Dr Ntsike allegedly refused to leave the office and wrote back saying, “I inform you that I am still in the office performing my duties as Director of Elections. To my recollection your contracts as commissioners of IEC have expired.”
She subsequently insisted in an interview with the Lesotho Times that she had been justified in defying the commissioners because their contracts had expired.
“I acted within my rights as the elections director because there was no way I could approve payments for people who were no longer supposed to be in office. I would not be able to account for any payments I would have made in their favour.
“I clearly told them that I had not received any proof or order from their employer as to why they are still in office when their contracts had expired. I sought explanations from their employer, that is the Council of State via the government secretary but to no avail. The only thing I had was their word that they were still officially in office.
“I was surprised by their decision to suspend me and I have not even thought of the way forward. Right now, I am at home and I will remain there until there are clear indications as to how all this will unfold,” Dr Ntsike said.
On 5 February 2019, the commissioners had written to Dr Ntsike informing her that the issue of the extension of their contracts was being dealt with by the Council of State “with the urgency it deserves”.
Part of the commissioners’ memo to Dr Ntsike read; “we further confirm that they (Council of State) are aware that we remain in office legally as commissioners notwithstanding the signing/extension of our contracts”.
The commissioners further referred Dr Ntsike to their 8 January 2019 letter to the private secretary of the Council of State, Monehela Phosholi, in which they communicated their desire and availability to remain in office and serve for another five years.
The commissioners wrote directly to the Council of State after the government secretary, Moahloli Mphaka, informed them that the government had decided against renewing their contracts.
“As you may be aware there is no right in law to be reappointed to serve a second term as a member of the IEC. Renewal as expressed by Section 66(7) of the Constitution is discretionary. It is noted that in your letter you expressed your desire to continue serving for another term. However, I am directed to inform you that the government has decided not to accept your request for reappointment as a commissioner of the IEC for a further five-year period.
“The outstanding matters relating to your benefits and privileges are now receiving the attention that they deserve. I wish to take this opportunity to wish you all the best in your future endeavors,” Mr Mphaka stated in the three separate letters to each of the commissioners.
Despite Mr Mphaka’s letter, the three commissioners have remained in office because they believe the government is not only wrong in trying to remove them from office, it has also failed to follow due process as outlined in the law by not engaging all political parties.
Dr Nyapisi lambasted the government over its failure to follow the due processes of informing political parties that the commissioners have expressed their desire to extend their contracts and having the input of all and sundry in any final decisions.
“The due process was not followed and that is why in November and December 2018, the political parties were surprised that this has happened (the government’s refusal to renew the contracts). The political parties then requested to be included in the process.
“It (contracts renewal issue) was handled badly and we then had the unfortunate situation where the Director of Elections (Dr Ntsike) did not pay the salaries of our drivers and secretaries,” Dr Nyapisi said.
He attributed the government’s alleged failure to follow due processes in handling their contracts renewal effort to its desire to “remotely control the IEC”.
“It shows that the government or politicians want to derail democratic principles and the foundations of key institutions by seeking to control them. That is a very sad development. It is not good to influence institutions that are supposed to be independent and which help in entrenching democracy.
“We have already seen these controlling tactics with the judiciary… It shows that there are vested interests and hidden agendas to throttle key institutions of democracy.
“Governments like to control institutions that run the elections… It is not only in Lesotho but all over the world. But we had gone a long way in Lesotho in trying to give the electoral commission true independence…It’s very worrying that there now appears to be determined efforts to scupper all this,” he said.
He said instead of the government mandating the Ministry of Law and Constitutional Affairs to play an oversight role over the IEC, the electoral body ought to have its own budget and be answerable to parliament only to assert its independence.
Dr Nyapisi said him and his fellow commissioners would continue in office because a gazette that confirmed their appointments was still in place and had not been revoked.
He said the fact that the Council of State has not written to them terminating their contracts gave them a legitimate expectation that their contracts would soon be renewed.
“We abided by the clause that we should communicate our desires (for contracts renewals) six months before the contracts end. When the appointing authority does not respond within that period, the legal expectation is that they have concurred with our requests. It cannot be that the silence mean that they do not concur because if they did not concur, they should say so….,” Dr Nyapisi said.
The Prime Minister’s Press Attaché, Thabo Thakalekoala, however begged to differ saying it was wrong for the commissioners to remain in office without explicit confirmation of the renewals of their contracts.
“When their contracts expired, they asked for an extension and it was within their rights to do so…
“But when one’s contract expires, they should vacate office until they are informed that their contract has been renewed. It is legally wrong for them to remain in office while their issues are being dealt with.
“Their case should have been decided two weeks ago but the King was out of the country when the Council of State was supposed to sit. They will get their response soon,” Mr Thakalekoala said.