BNP court petition set for December

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Lesojane Leuta
Lesojane Leuta

Tefo Tefo

THE High Court will on 2 December 2016, hear a case in which the Basotho National Party (BNP) wants the court to allow the dismissal of its two former members, Mrs ‘Makhotso Matšumunyane and Mr Lesojane Leuta from the National Assembly.

“The case has been set for argument on the 2nd of December this year and it will be heard by Her Ladyship Justice (‘Maseshophe) Hlajoane,” the High Court’s Assistant Registrar Stafford Sharite said yesterday.

The BNP lodged a petition in the High Court 12 September 2016, seeking the correct interpretation of section 188 (3) of the National Assembly Electoral Act of 2011, on whether or not Ms Matšumunyane and Mr Leuta’s seats in the National Assembly became vacant by virtue of their dismissal from the party.

National Assembly Speaker Ntlhoi Motsamai, Independent Electoral Commission (IEC), Ms Matšumunyane, Mr Leuta and Attorney-General Tšokolo Makhethe respectively are cited as first to fifth respondents respectively in the matter.

The party also wants the court to declare vacancies in the National Assembly “in terms of section 188 (3) of the National Assembly Electoral Act, 2011 by reason of the dismissal of the third and fourth respondents” from the BNP.

It wants Ms Motsamai to be ordered to appoint the next two persons on the party list “in order of preference as members of the National Assembly.”

Section 188 (3) of the National Assembly Electoral Act of 2011 states that a member of the National Assembly allocated a seat by proportional representation shall vacate that seat if the member resigns as a member, resigns from the political party under which the member was elected, crosses the floor, dies or becomes disqualified for being a member under the Act.

BNP, therefore, contends that “in establishing the correct interpretative approach of the above legal provision, the Honourable Court should not only pay due regard to the ordinary grammatical meaning of the words in the text; but should consider them as a whole, its political history and purpose”.

“The history of the electoral system in Lesotho reflects that the MMP (Mixed Member Proportion) electoral model was adopted in order to accommodate representation in the National Assembly of political parties who have a popular vote nationally but fail to win at the constituency level. Thus, in order to arrive at the true intention of the draftsman of section 188 (3) of the National Assembly Electoral Act, 2011, the words in issue must be interpreted in the context of the Act as a whole, as well as the background material.”

The party says in terms of section 47 (1) of the Act, it is a political party contesting proportional representation elections that nominates and submits a list of nominated candidates to the IEC.

“A decision on who should be on the list is made solely by the political party concerned.”

In terms of section 55 read with section 104 of the Act, the BNP says after constituency votes have been declared, the IEC converts constituency candidates’ votes into national political party votes. Then and using the prescribed formula, political parties are allocated their share of the 40 proportional seats based on their popular vote, it argues.

“Your Petitioner avers from the reading of the above provisions, and in keeping with the spirit of the MMP electoral system, that the 40 PR seats are allocated to political parties that participated in the proportional elections. In the circumstances, a candidate elected to the National Assembly under proportional representation retains his/her seat as long as he/she represents and executes the mandate of a political party allocated the seat in issue.

“Your Petitioner avers further that the restrictive reading of section 188 (3) of the Act by the 1st Respondent offends the spirit of the MMP electoral system and leads to an absurdity that a member may retain a seat in the National Assembly even when he/she does no longer represents the interests of a party that has been allocated the seat under proportional representation.

The BNP also submits that in terms of section 188 (3), a member should vacate their seat if they no longer represent the political party that has actually been allocated the seat. The BNP contends that it would be absurd that a member who willingly leaves a political party should vacate a seat but a member expelled from the political party should retain the seat.

“Whether a member willingly or unwillingly leaves a political party, the end result is the same; he/she is no longer a member and an agent thereof and can thus not be expected to represent the interests of a concerned political party,” reads part of the petition.

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