Pascalinah Kabi
OPPOSITION parties outwitted the ruling coalition and parachuted their loyalists for appointments into the all-powerful Independent Electoral Commission (IEC).
If the opposition’s plans had not been scuttled at the last minute Fako Likoti, a Democratic Congress (DC) functionary and close advisor of former Prime Minister Pakalitha Mosisili, would already be ensconced in a new role as IEC chairman while another Mosisili associate, Mphasa Mokhochane, would be one of two commissioners with Lesotho Congress for Democracy (LCD) member Karabo Mokobocho completing the cast.
Sources said the opposition parties had stolen a march on the ABC and its other coalition partners as these remain transfixed in their internecine internal power struggles at the expense of managing serious government business. The opposition’s schemes were only unravelled at the last minute when the Council of State was on Friday served with an interim court order interdicting them from recommending these appointments to His Majesty King Letsie III.
The order instigated by the country’s main civic body, the Transformation Resource Centre (TRC), barred the appointments until the finalisation of its main application challenging the entire recruitment process of commissioners of the IEC. The TRC is vehemently opposed to what it sees as an opaque recruitment process conducted and controlled by political parties, thus enabling them to stuff their functionaries into what should be an independent body tasked to run credible elections.
The TRC wants the recruitment exercise 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.
Had it not been for the TRC’s last minute intervention, the sources said the appointments of Dr Likoti, Mr Mokhochane and Dr Mokobocho would have gone ahead, creating an interesting paradox in which the four ruling coalition partners would not have a single nominee in such an important constitutional body.
The ABC is the worst hit with internal power struggles with the party split right through the middle between factions loyal to party leader and Prime Minister Thomas Thabane and deputy leader Nqosa Mahao.
Dr Thabane and the party’s old National Executive Committee (NEC) have refused to accept Prof Mahao and the new NEC elected at the party’s February 2019 elective conference. This is despite last month’s High Court ruling which upheld the latter’s election. Since that court ruling, the war of attrition in the party has escalated with the two factions taking turns to “suspend” and “expel” each other from the party. ABC legislators loyal to Prof Mahao have also teamed up with the opposition to file a no confidence motion against Dr Thabane. The motion was only prevented from being tabled and voted on by last month’s indefinite adjournment of parliament. Many believe this was done to buy Dr Thabane some time to deal with the infighting in his party. But the infighting is only escalating with the old NEC going to court to try and stop a conference slated by the Mahao faction for this weekend to, among other things, formalize Dr Thabane’s “expulsion” from the party.
In the midst of the ABC’s never ending internal drama, processes to appoint new commissioners to replace the outgoing trio of Justice Mahapela Lehohla (chairperson), Advocate ‘Mamosebi Pholo and Dr Makase Nyaphisi were initiated by the country’s political parties which are registered with the IEC, as per the current rules governing such appointments. The political parties’ technical committee, headed by opposition Popular Front for Democracy (PFD) leader, Lekhetho Rakuoane, appointed Workplace Solutions as consultants in the recruitment process.
Besides Advocate Rakuoane, other members of the political parties’ technical committee are Basotho Democratic National Party (BDNP) leader Pelele Letsoela, Reformed Congress of Lesotho (RCL) leader and labour minister Keketso Rantšo, Democratic Party of Lesotho leader Limpho Tau and Mpulule Political Summit leader Remaketse Sehlabaka.
The sources said the technical committee had earmarked Dr Likoti for the chairmanship with Mr Mokhochane and Dr Mokobocho as the commissioners. The Council of State would have routinely recommended the appointment of the trio to His Majesty had it not been for the intervention of the TRC.
Dr Likoti, a member of the DC, was former Prime Minister Pakalitha Mosisili’s political advisor from 2015 to 2017. He previously served as an IEC commissioner from 2008 to 2013.
Mr Mokhochane, a former IEC deputy director of elections, is also said to be close to Dr Mosisili while Dr Mokobocho, a former Lesotho College of Education (LEC) Rector, is said to be a member of the LCD.
According to a source, the congress parties “took full advantage of the ongoing situation in the ABC to ensure the trio were appointed after awarding the consultancy tender to a firm (Workplace Solutions) whose owner Mampukula Esther ‘Mota has close ties with Likoti”.
Workplace Solutions has already faced a barrage of accusations that it was awarded the consultancy job without meeting all procurement regulations. African Ark leader Thabo Thelingoane has alleged the company did not even have a tax clearance certificate in violation of Public Procurement Regulations of 2007.
Dr Likoti refused to comment, saying “the matter (of the IEC appointments) is still in court”.
The TRC wants the whole process of appointing the IEC bosses nullified because of the inappropriateness of having such an important process run by political parties. The political parties’ technical committee was appointed by the Political Parties’ Leaders’ Forum, comprising of all leaders of political parties registered with the IEC, to deal with problems saddling the IEC whose outgoing commissioners have been fighting to remain in office. It recommended the ouster of Justice Lehohla, Dr Nyaphisi and Advocate Pholo and took charge of recruiting their replacements.
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, Dr Likoti, Mr 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 argues in its court papers that the process of appointing the new commissioners was irretrievably flawed. It says Workplace Solutions had hastily conducted interviews and shortlisted candidates for the positions of chairperson and commissioners of the IEC without any transparency.
In his founding affidavit TRC Director Peshoane Tsikoane said the Political Parties’ Forum was an unregistered body which should have no mandate to undertake such an important process without public scrutiny. It also had no power nor mandate to manage the public purse.
“For purpose of this case, I must indicate that public funds in the custody of government are regulated by statute and any procurement of services or goods must be regulated by the Public Procurement Regulations.
“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 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.
He said TRC and the public had been deprived of the chance to scrutinize the recruitment process including the manner in which the decision to shortlist the identified candidates was arrived at.
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.
“In my assessment, many of the shortlisted persons could have been rejected at the first round of interrogation of their credibility had my organisation been allowed to participate in the selection and recruitment process,” Mr Tsikoane charged.
“The decision to reject us (in the recruitment process) is thus wrong and unlawful.”
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. He outlines how he felt let down by the process.
The TRC’s court challenge will now delay 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 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.
