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ConCourt sets date for IEC commissioners’ case 

by Lesotho Times
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Mohalenyane Phakela

THE Constitutional Court has postponed to 30 July 2019 a case in which the Transformation Resource Centre (TRC) and two others are challenging processes expected to culminate in the appointment of new Independent Electoral Commission (IEC) commissioners.

The postponement is meant to give the Constitutional Court time to familiarize itself with the contents of the answering affidavits filed by the respondents. On 30 July 2019 the court will hear the applicants’ and defence lawyers’   arguments on the points of law raised in the answering affidavits of the respondents.

The Lesotho Times learnt of the latest postponement from one of the applicants’ lawyers, Advocate Koili Ndebele.

The matter was first heard last Thursday by High Court judge Justice Tšeliso Monapathi who issued the interim interdict barring the Council of State and His Majesty King Letsie III from making the appointments until the case has been finalised.

Justice Tšeliso Monapathi also set 3 July as the date which the case should be heard by the Constitutional Court comprising of Acting Chief Justice, ‘Maseforo Mahase, Lebohang Molete and Keketso Moahloli. On the 3 July, the matter was deliberated on in the judges’ chambers and postponed to 15 July.

But on Monday, the case never made it into the open court. It was deliberated in the judges’ chambers and Adv Ndebele subsequently told this publication that it had been postponed to 30 July 2019.

“The judges deliberated and decided that we will return on 30 July to argue the points of law that have been raised by the respondents,” Adv Ndebele said.

The applicants are the TRC, unsuccessful IEC hopeful Maieane Khaketla and the African Ark, one of the political parties involved in the processes to recruit and appoint new commissioners.

The Council of State, His Majesty King Letsie III, the Directorate on Corruption and Economic Affairs (DCEO), the Minister of Parliamentary Affairs, Workplace Solutions, the IEC and Attorney General are cited as 1st to 7th respondents, respectively.

Thirty one political parties that are registered with the IEC are cited as 8th to 38th respondents while Seabata Motsamai, Dr Mabataung Khati, Khosi Makubakube, Justice Michael Ramodibedi, Fako Likoti, Mphasa  Mokhochane, Monyane Phoofolo, Ithabeleng Phamotse, Motlatsi Ramafole, Tšeliso Khomari, Makhojane Monyane, Booi Mohapi, Moeketsi Nkoe, Sofonea Shale, Teboho Tolo, Dr Mokobocho, Professor Thekiso Khati, Dr Mampho Kotelo-Molaoa, Dr Lebohang Khomari, Mabataung Lillane, John Oliphant, Bokang Lelimo, Petlane Tšoeu, ‘Matlali Mapetla and Dr Retšelisitsoe Nkoe are cited as the 39th to 63rd respondents.

The TRC has wants 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. The TRC also wants a final order which nullifies the appointment of Workplace Solutions as the consultants in the whole recruitment exercise.

The TRC contends 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.

In his founding affidavit TRC Director Peshoane Tsikoane said the governing coalition and opposition parties that presided over the recruitment process of the commissioners should not be allowed to undertake such an important process without public scrutiny.

“I confidently aver that there is no law that authorises a conglomeration of political parties to outsource services of experts and consultants to do work for and on behalf of the government of Lesotho without strict adherence to the procurement regulations or laws governing the management of public funds,” Mr Tsikoane said.

He said the awarding of the tender to Workplace Solutions was made on inadequate, incomplete and inaccurate information.  Its findings and conclusions in shortlisting candidates should thus be nullified.

He said excluding the TRC and the public from the process of recruiting IEC commissioners was not only undemocratic but illegal and unconstitutional. This constitutional violation clearly compromised the entire process.

Mr Tsikoane said most of the candidates shortlisted had served this country in important strategic positions.  It was thus important to probe whether or not they had performed well in those positions to deserve being elevated to the IEC. The moral character and integrity of such candidates should also be subjected to serious scrutiny. Some of the candidates had performed so poorly in their previous portfolios that they did not deserve a second chance, he argued.

Maieane Khaketla, a co-applicant in the TRC lawsuit, argues that the recruitment process was severely flawed and compromised from his perspective as a participant in the process.

The TRC’s court challenge has delayed the appointment of new IEC commissioners to replace the outgoing commissioners whose contracts were not renewed at expiry in January 2019. The outgoing commissioners are Justice Mahapela Lehohla (chairperson), Advocate ‘Mamosebi Pholo and Dr Makase Nyaphisi.

They are contesting this decision, adding to the plethora of court cases that have plunged the country’s electoral management system into serious jeopardy at a time when fresh elections appear inevitable in light of the infighting in the ABC in particular.


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