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Elections thrown into doubt

by Lesotho Times
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  • as ConCourt orders IEC to redo the delimitation of 20 constituencies,
  • IEC chair accused of intentionally botching exercise to delay polls.

Mohalenyane Phakela

THE Constitutional Court has ordered the Independent Electoral Commission (IEC) to redo the delimitation of 20 constituencies, a move that could lead to the postponement of the elections scheduled for 7 October this year.

The judgement was handed down this week following an application by the Democratic Congress (DC) and Movement for Economic Change (MEC) leader, Selibe Mochoboroane, for the nullification of the IEC’s constituency delimitation exercise.

The DC and Mr Mochoboroane joined forces to petition the Constitutional Court to set aside the constituency delimitation process, arguing that it was done outside the 10-year period prescribed by section 67 of the constitution.

In their constitutional application filed in May this year, they wanted the court to nullify the recent delimitation of constituencies and order the IEC to hold the elections using the 2010 constituency boundaries model which was used for the 2012, 2015 and 2017 general elections.

The application was heard by the Constitutional Court bench comprising of Chief Justice Sakoane Sakoane (presiding) and Justices Realeboha Mathaba and ‘Maliepollo Makhetha. They heard the matter on 21 June 2022 and reserved judgement.

The IEC, Law and Justice Minister Lekhetho Rakuoane, Attorney General Rapelang Motsieloa and 50 other political parties were the first to 53rd respondents in the application. The cited parties included the All Basotho Convention (ABC) – the lead party in the governing coalition alongside the DC and MEC.  The Basotho National Party (BNP), Lesotho Congress for Democracy (LCD) and business mogul Sam Matekane’s fledgling Revolutionary for Prosperity (RFP) were also cited.

The electoral body has already lost the first part of the legal battle. It had sought to have the case thrown out on the grounds that the Constitutional Court did not have the jurisdiction to entertain the DC and Mr Mochoboroane’s application.

The IEC and its co-respondents had argued that the applicants had jumped the gun by going straight to the Constitutional Court without having raised their complaint with the electoral body.

But last month, the Constitutional Court threw out the IEC argument. It was then left for it to hear the main application and issue its verdict.

Handing down the judgement this week, the court said it had found discrepancies in 20 constituencies and ordered the IEC to redo the delimitation exercise in the affected constituencies.

The 20 were found to either have more people than the minimum or maximum threshold for a constituency.

The minimum threshold is 13 956 while the upper limit is 17 058 people per constituency. However, the constituencies including former Prime Minister Pakalitha Mosisili’s Tsoelike (12 749 people), Deputy Prime Minister Mathibeli Mokhothu’s Qhoali (17 458) and Revolution for Prosperity (RFP) leader Sam Matekane’s home turf of Mantšonyane (13 862 people) were found to have discrepancies.

Others found with discrepancies were Mechechane (12 977 people), Mphosong (17 380), Tsikoane (17 574), Moselinyane (22 883), Kolonyama (13 870), Tšoana Makhulo (13 240), Phoqoane (17 791), Matelile (13 822), Mohale’s Hoek (19 844), Phamong (19 861), Hloahloeng (13 824), Moyeni (19 789), Mount Moorosi (17 334), Qacha’s Nek (18 401), Lebakeng (12 806), Thaba Moea (12 807) and Bobatsi (13 070).

Reading the judgement on behalf of the bench, Justice Mathaba said the 20 constituencies were non-compliant in that they were either below or above the required population quota.

“The imperatives of the rule of law demand that crossing this red line (minimum and upper population threshold per constituency) be declared as null and void in terms of section 2 of the Constitution,” Justice Mathaba said.

“The applicants contended that the IEC acted unreasonably by confining the boundaries of each constituency within the administrative boundaries of districts, thereby making it fail to observe the 10 percent threshold provided for in section 67(2) of the Constitution. Section 67(1) of the Constitution which obligates the IEC to divide the country into 80 constituencies for the purpose of elections makes no reference to district administrative boundaries,” Justice Mathaba said.

“Again, if constituency boundaries were to be confined to district administrative boundaries, voter parity would never be achieved as districts are not evenly populated, thus the applicants’ contention has merit.

“The IEC’s job is to delimit constituency boundaries. It is also to hold elections and not withhold them. But holding elections on the basis of constitutionally flawed constituencies constitutes a subversion of the principles of voter parity and equal representation which are the building blocks of a sovereign democratic country proclaimed in section 1 of the constitution…

“Based on the doctrine of constitutional validity, the 20 constituencies are invalid. As a result going ahead to hold elections before the constituencies are corrected will be tantamount to conducting elections on the basis of legally flawed constituencies thereby desecrating the constitution.

“The court considered whether the 20 non-compliant constituencies can be severed from the rest. It is not possible to sever them because elections have to be held on the same day throughout the Kingdom in terms of section 80 of the Electoral Act. The Act does not provide for partial or staggered elections. The 80 members of the National Assembly must be elected the same day and enter parliament on the same day with other 40 elected on the principle of proportional representation.

“The court takes judicial notice that during the pendency of this matter, the King by proclamation appointed 7 October 2022 as the date of elections. This is the target date the IEC should chase in the course of taking any corrective measures in respect of non-compliant constituencies to ensure that the elections are held on the proclaimed date,” Justice Mathaba said.

He said the court bench had concurred that the applicants had partially succeeded where they sought the review and setting aside of the IEC’s delimitation order. However, they failed in their quest to have the entire delimitation exercise set aside on the grounds that it had been conducted outside the 10-year period prescribed by section 67 of the constitution.

“In the result the following order is made: The (IEC)’s Delimitation order No. 37 of 2022 is declared unconstitutional and set aside in respect of the 20 constituencies: Mechechane, Mphosong, Tsikoane, Moselinyane, Kolonyama, Tšoana Makhulo, Phoqoane, Matelile, Mohale’s Hoek, Phamong, Hloahloeng, Moyeni, Mount Moorosi, Qhoali, Qacha’s Nek, Lebakeng, Tsoelike, Mantšonyane, Thaba Moea and Bobatsi.

“It is declared that in reviewing boundaries of constituencies, the IEC is not bound to limit such constituencies to the limit of the administrative districts.

“The rest of the prayers (for the nullification of the entire delimitation exercise) are dismissed. The first respondent (IEC) to pay 50 percent of the applicants’ costs,” Justice Mathaba said on behalf of the court bench.

The IEC appeared to have been taken aback by the judgement. The electoral body said it was still studying the verdict to understand its full implications before advising the nation on the way forward.

Even though the judgement is in respect of 20 constituencies, it is likely to affect the other 60 as well. This is because the IEC cannot take corrective measures in the 20 without tampering with the other constituencies in order to achieve the required population thresholds.

Given that only one full month and days remain before the 7 October elections date, it is likely that this could result in the postponement of the eagerly awaited polls.

The court verdict could result in the political parties going back to the drawing board to redo the selection of candidates to represent them in the elections. Some like the RFP and the ABC had already selected their candidates.

Although the ABC did not oppose the DC-Mochoboroane application, it has on several occasions supported the delimitation exercise.

Following the announcement of the court judgement, ABC secretary general, Lebohang Hlaele, told the Lesotho Times that his party would have to reconduct its primary polls.

“This ruling does not only affect the ABC but all political parties,” Mr Hlaele said.

“Although it has been said only 20 constituencies have to be adjusted, this can’t be done without affecting others. It means we will have to conduct fresh primaries to elect candidates depending on how the constituencies will now be shifted. It may happen that the person we have elected to represent a certain constituency may be moved to another. But all that will have to be done after the IEC has pronounced itself. This means that for now our hands are tied,” Mr Hlaele added.

Senior DC officials like deputy leader, Motlalentoa Letsosa, secretary general Tsitso Cheba and spokesperson Serialong Qoo expressed satisfaction with the verdict.

Mr Letsosa said although they did not get all the prayers they had sought, they were nonetheless pleased with the court ruling that the delimitation exercise “had produced several flawed constituencies”.

However, BNP leader Machesetsa Mofomobe was left seething by the judgement. He also accused an unnamed IEC commissioner of unilaterally and intentionally tampering with the delimitation exercise to produce the flawed constituencies.

He alleged that the commissioner had done this to further the DC and Mr Mochoboroane’s agenda of forcing the elections to be held under the previous 2010 delimitation exercise which these parties believed was favourable to them.

“I want you to put this on record. I have been reliably informed that one of the commissioners shares an interest with the congress parties that we should go for elections using the old constituencies from the 2010 delimitation exercise. Therefore, the commissioner meddled with the review process so that the new model could have problems and be rejected by the courts.

“However, the court has also given a dangerous order which may derail the elections. I am of the view that we are going to have bad elections if ever they proceed. But then again, if elections are deferred, that would create a constitutional crisis because we would not have a government. We cannot continue to be in government beyond the constitutionally prescribed period. Basotho need to exercise their constitutional right of voting for the government they want. The court could have allowed us to proceed with elections in the other 60 constituencies because the affected 20 are not a majority,” Mr Mofomobe said.

Although he did not name the commissioner who had allegedly tampered with the delimitation exercise, some IEC sources who spoke to his publication on condition of anonymity for fear of reprisals fingered the electoral body’s chairperson, Mphasa Mokhochane.

“The delimitation process had been planned very well from 2018 when it began under the previous commissioners. However, when Mr Mokhochane came on board in 2020, he personally visited the 20 affected constituencies and ordered the boundaries to be redrawn in a different manner from the one the IEC had projected in 2018,” an IEC source said.

Another IEC source even produced documents seemingly showing how the 20 and all other constituencies had initially been drawn up. In the document, most of the 20 constituencies are shown to have population figures which fall within the required threshold.   For example, Mr Mosisili’s Tsoelike constituency which has a below threshold figure of 12 749 in the final delimitation order, is shown to have 14 048 people in the document. Despite having a below threshold figure of 13 862 people in the final delimitation order, Mr Matekane’s Mantšonyane constituency is shown to have 14 123 people in the document.

The exception is Mr Mokhothu’s Qhoali constituency which has the same 17 458 people in the final order and preliminary document. This figure is slightly higher than the upper limit of 17 058 people per constituency.

Attempts to obtain comment from Mr Mokhochane were fruitless as his mobile phone rang unanswered throughout the week.

He has previously been accused of having strong ties with the congress parties.

He was appointed IEC commissioner alongside Karabo Mokobocho and Tšoeu Petlane in November 2020.

They took over from previous commissioners, Mahapela Lehohla, ‘Mamosebi Pholo and Makase Nyaphisi whose tenure had expired in January 2019.

The delimitation exercise commenced in February 2018 under the previous commissioners.

The IEC then resumed the constituency delimitation process in September 2021 – a move which was opposed by the DC and other congress parties on the grounds that it was now being done outside the 10-year period prescribed by section 67 of the constitution.

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

The two argued that the IEC should be stopped because it had begun delimiting constituency boundaries when it had no commissioners after the expiry of the previous commissioners’ tenure.

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 delimitation exercise was illegal and should be stopped since it was started by unauthorised people, Messrs Cheba and Kompi had argued.

High Court Judge Molefi Makara ruled that he had no jurisdiction over their application.

The DC then joined forces with Mr Mochoboroane to file a fresh application in May 2022, this time in the Constitutional Court. This application, whose verdict was delivered this week, was occasioned by the issuance of an IEC gazette in April 2022 indicating that it had finished delimiting the 80 electoral constituencies in preparation for the October elections.

The DC and Mr Mochoboroane argued that the IEC had commenced the delimitation exercise outside the prescribed 10 year period. They also argued that some of the constituencies were either below or above the required population quota.

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