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Constituency delimitation case postponement riles lawyers

by Lesotho Times
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Mohalenyane Phakela

THE postponement of the legal battle between the Democratic Congress (DC) and the Independent Electoral Commission (IEC) has frustrated both parties’ lawyers.

The Constitutional Court yesterday deferred the DC’s application to nullify the constituency delimitation exercise by the IEC ahead of general elections due in October this year to 20 July 2022.

The much-anticipated legal battle was postponed due to the non-availability of presiding judge, Chief Justice Sakoane Sakoane and Judge Realeboha Mathaba. The third judge in the matter is Justice ‘Maliepollo Makhetha.

The latter was the only one out of the trio who was present yesterday when the matter was supposed to proceed. Judge Tšeliso Monapathi is the one who deferred the matter to 20 July 2022.

“The Chief Justice is a member of this panel and he is not available today. He has therefore requested that the matter be postponed to the 20th of this month,” Justice Monapathi said.

The DC had joined forces with cabinet minister and Movement for Economic Change (MEC) leader, Selibe Mochoboroane, to petition the Constitutional Court to set aside the constituency delimitation process.

However, their lawyer, Motiea Teele, was unhappy with the postponement of the case.

“I am worried that the elections period will soon start. We had hoped that this matter would be disposed of before dissolution of parliament. However, I realise there is not much that can be done,” Adv Teele said.

The IEC’s lawyer, Kabelo Letuka, concurred. He said that parliament was set to be dissolved next Thursday.

“The subject of this matter is a decision which will become effective on 14 July 2022 when parliament is dissolved,” Adv Letuka said.

However, Justice Monapathi said there was nothing he could do.

“I hope you are not asking me to do anything before 14 July. I feel so helpless. If you have any issues, get in touch with the clerks of the judges involved. This matter is postponed to 20 July 2022,” Justice Monapathi said.

After the 14 July dissolution of parliament, King Letsie III has to call for fresh polls which are usually 90 days after his announcement. His Majesty has to make the announcement within 72 hours after dissolution of parliament.

The postponement puts the IEC, which has already started preparing for polls, in a dilemma. This because if the IEC losses the case, it has to redo the delimitation exercise.

In their May 2022 constitutional application, the DC and Mr Mochoboroane want the court to nullify the ongoing delimitation exercise and order the IEC to hold the elections using the current constituency boundaries.

The IEC, Law and Justice Minister Lekhetho Rakuoane, Attorney General Rapelang Motsieloa and 50 other political parties are first to 53rd respondents respectively in the application. The cited parties include the ABC, Basotho National Party (BNP), Lesotho Congress for Democracy (LCD) and business mogul Sam Matekane’s newly formed Revolutionary for Prosperity (RFP).

In their prayers, the DC and Mr Mochoboroane want the government to gazette (Legal Notice 37 of 2022), which empowers the IEC to review the constituency boundaries, nullified.

“(The) Legal Notice 37 of 2022 (the National Assembly Electoral Act of 2011 Constituency Delimitation Order) shall be reviewed and set aside as irregular and unlawful and therefore null and void.

“The decision of the first respondent (IEC) in terms of which it commissioned a review of constituencies, purporting to act in terms of the provisions of section 67 of the constitution as contained in legal notice 109 (National Assembly Electoral Constituency Delimitation Notice), dated 24 September 2021, be reviewed and set aside as invalid, irrational and unreasonable to the extent that it violates the provisions of section 67(3) of the constitution.

“The first respondent be ordered to prepare for national elections using the current constituency boundaries,” the DC and Mr Mochoboroane state.

The IEC is in the process of reviewing the constituency boundaries as mandated by section 67 of the Constitution. It has to divide Lesotho into 80 constituencies and review such constituency boundaries not more than 10 years after the last review. In this case, the last review was conducted in 2010, meaning that a new delimitation exercise is long overdue.

However, the congress parties are determined to stop the delimitation process and ensure that the upcoming elections are held using the 2010 constituencies.

The constituency review process was first challenged in December 2021 by DC secretary general, Tšitso Cheba, and the party’s aspiring MP for the Qaqatu constituency, Lethusang Kompi.

The duo argued that the IEC should have been stopped on the grounds that it began delimiting constituency boundaries when it had no commissioners in 2018.

They argued that the delimitation exercise was conducted under the supervision of the IEC’s director of elections and not the commissioners as provided for by section 135 of the National Assembly Act of 2011. Therefore, the ongoing delimitation exercise was illegal and must be stopped since it was started by unauthorised people, Messrs Cheba and Kompi argued.

The High Court’s Justice Molefi Makara declined jurisdiction over their application. Subsequently, the DC joined forces with Mr Mochoboroane in filing a fresh application on the same matter. The latest application has been occasioned by the issuance of a gazette in April 2022 by the IEC indicating that it had delineated 80 electoral constituencies ahead of the elections.

The constituencies were delineated on the basis of the last census held in 2016. The DC insists that the census is outdated and cannot be used for the purpose.


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