- judgement clears the way for the much-delayed recruitment of IEC commissioners
Mohalenyane Phakela
THE Constitutional Court has dismissed the Transformation Resource Centre (TRC) and two others’ application to stop political parties from recruiting new Independent Electoral Commission (IEC) commissioners without the active participation of civic groups.
In its verdict this week in the long-delayed application, the court ruled that the TRC and its co-applicants, Maieane Khaketla and the African Ark political party, lacked the legal standing to file the application.
The court also ruled that the applicants were wrong to approach it before exhausting other remedies including beginning their application at the High Court.
The net effect of the judgement by Acting Chief Justice ‘Maseforo Mahase and Justice Keketso Moahloli is that the Council of State and the political parties can proceed with the recruitment of new IEC commissioners to replace Mahapela Lehohla (former chairperson), Advocate ‘Mamosebi Pholo and Dr Makase Nyaphisi.
The trio’s contracts expired on 7 January 2019 but the government refused to renew them. Their legal bid to remain in office failed.
Subsequent efforts to appoint new commissioners were put on hold by a 27 June 2019 Constitutional Court application by the TRC, Mr Khaketla and the African Ark for an order that the recruitment exercise of the new commissioners be re-done with the active participation of civic groups through a public interviewing process.
The applicants also wanted the court to nullify the appointment of Workplace Solutions in the whole exercise. They contended that Workplace Solutions was awarded the tender without following proper bidding processes in contravention of the Public Procurement Regulations of 2007. They even alleged that the firm did not have a tax clearance certificate to qualify for bidding.
The African Ark was one of the political parties involved in the processes to recruit and appoint new IEC commissioners while Mr Khaketla was one of the applicants to the IEC commissioners’ posts.
The matter was heard by Justices Mahase, Moahloli and Lebohang Molete. Justice Molete died on 30 May 2020 before the case had been finalised. He died from complications arising from a stroke. The judgement was delivered by Justices Mahase and Moahloli.
Reading the judgement on Tuesday, Justice Mahase said the applicants lacked the legal standing to file the application.
“According to the provisions of section 66(4) of the constitution, it is the duty of the Council of State, and not of any of the applicants, to select the names of persons to be submitted to the King under subsection 3 (of section 64).
“The Council of State shall request all registered political parties to jointly propose to the Council the list of not less than five names from which the King will select members of the IEC. The duty of selection of names is placed on the Council of State whilst the list is proposed by political parties jointly.
“There is nowhere in the constitution where the first applicant (TRC) plays any role in the proposal of names from where the Council of State will select names to submit to the King. As for the procedure which the applicants complain, they have a remedy in terms of rule 50 of the High Court Rules.”
Justice Mahase also said the applicants had prematurely approached the court without exhausting all remedies available to them.
“…the applicants have not exhausted other available remedies in the High Court before approaching the constitutional court. Rules pertaining to interdict, specific performance and review are common law remedies for which the applicants have a remedy in the High Court.
“The constitutional court has no jurisdiction in this matter. All in all, the applicants in approaching this court as they did, abused court processes and failed to exhaust local remedies in the urgent quest to stop the proceedings of the Council of State at the eleventh hour.
“They dismally failed to apply their minds to the proper reliefs which can be sought for in a constitutional litigation. The decision of this court is that it has no jurisdiction to entertain this matter.”
Justice Mahase also said there was conflict of interest on the part of the TRC which ought to have prevented it from bringing a lawsuit in a case involving the IEC.
“The TRC and the IEC have a working relationship through which the TRC has been given huge sums of money by the IEC.
“This confirms that the first applicant (TRC) has received benefits from the sixth respondent (IEC) despite that the first applicant wants to participate in the wide selection and shortlisting of top officials in the very institution which it has working relationship (sic). This is a clear conflict of interest,” Justice Mahase said.
On his part, Justice Moahloli said the TRC’s claim that it has a right to participate in the selection of IEC commissioners was unconstitutional.
“Our constitution contains no express provisions for the liberalisation of the rules of locus standi (legal standing to sue) unlike other jurisdictions. In my view, the TRC has failed to prove that it has sufficient personal interest in this matter. It cannot be said to be the citizen of Lesotho having a right to participate in the conduct of public affairs …
“It cannot therefore pretend to have locus standi to apply to this court for redress. For this reason, it cannot claim any reliefs sought in the notice of motion…The application is dismissed,” Justice Moahloli said.
