…but opposition parties demand their sacking
Mohloai Mpesi
A heated wrangle has erupted between incumbent Independent Electoral Commission (IEC) Commissioners and political parties over the Commissioners’ quest to secure a second term in office.
The three current Commissioners; IEC Chairperson Mphasa Mokhochane, Karabo Mokobocho-Mohlakoana and Tšoeu Petlane, are approaching the end of their five-year tenure, which began in December 2020.
They have expressed their desire to be reappointed for a second term before their tenure ends in December this year.
However, the Forum of Registered Political Parties is pushing back, insisting that the Council of State must initiate a recruitment process for new Commissioners rather than renewing the incumbents’ contracts.
The Forum
In a letter addressed to the Senior Private Secretary to His Majesty and Secretary to the Council of State, the Forum – chaired by Chief Pelele Letsoela, the former President of the National Reforms Authority (NRA) – argues that Section 66(7) of the Constitution (as amended) mandates that Commissioners serve no more than five years per term, and that reappointment must follow a formal selection process.
“On the 4th of December 2020, His Majesty the King appointed the current IEC Commissioners pursuant to Legal Notice 125 of 2020, with effect from the 1st of December 2020. It is now an established practice and procedure since 2013 that a Commissioner’s second term is not automatically renewed but is subjected to the recruitment process (sic) with all interested candidates,” the letter reads.
They cited the case of former Commissioner, Fako Likoti, whose request for reappointment was turned down, and had to apply afresh alongside other candidates.
According to the Forum, Dr Likoti applied in both 2013 and 2019 and, although his name appeared on the list of shortlisted candidates submitted to the Council of State on both occasions, he was not reappointed.
“The preceding IEC of 2014 to 2019, which was chaired by Justice Mahapela Lehohla, pursued the legal route seeking automatic reappointment and failed in court. The case numbers were CONS/08/2019 and C OF A (CIV) 70/2019 for ease of reference,” the Forum said.
Any attempt to reappoint the current Commissioners without due process would be in breach of the law, they warned.
“It is so obvious for all to see that any attempt to grant reappointment to the Commissioners without due process — which includes submission of names by political parties in terms of Section 66 as amended — would be legally flawed, discriminatory, unfair, and against the principles of the rule of law, as it would be prejudicial to other potential candidates, and Dr Likoti in particular,” the letter further reads.
The Forum urged the Council of State to follow established practice by allowing all eligible candidates to contest.
“Therefore, the political parties urge the Council of State to follow the established practice of allowing candidates to contest, as has been done in the past.
“We urge the Council of State to give the green light to the Government Secretary and the relevant ministry to cooperate with political parties in preparation for the eventuality. The Council of State is aware that we need professional consultants, and that the 30-day constitutional timeframe is impossible to meet for an exercise of this magnitude,” the letter continues.
Mokhochane
However, Mr Mokhochane, in an exclusive interview with the Lesotho Times, countered the Forum’s argument by referring to the amended Section 66 (7) of the 2004 Constitution, which he said allows for reappointment of a Commissioner for a further term not exceeding five years.
“Let me read the 5th Amendment of the Constitution, which was made on the 3rd of November 2004.
“It says Section 66 of the Constitution is amended by deleting (7) and substituting the following: ‘A member of the Electoral Commission shall hold office for such term, being not more than five years, as is specified in his instrument of appointment, and may be reappointed for only one further term, not exceeding five years.’”
He acknowledged that while the Government Gazette dated his appointment as of 1st December 2020, he only assumed office on 14th December 2020. He added that his contract requires him to declare his interest in renewal six months before expiry.
“It is true that the gazette appointing me is dated the 1st of December 2020, but I assumed office on the 14th of December 2020. My contract says six months before the expiration of my appointment, I should inform the employer whether I am interested in continuing or not,” he said.
Mr Mokhochane said he had already expressed his interest in a second term and is awaiting a response from the Council of State.
“On the 2nd of June 2025, I expressed interest to the employer for a second term. The contract states that three months before expiration, the employer will determine whether to extend the term or not.
“So, I am currently waiting for the employer’s response. If the employer says they are not renewing my contract, I will pack my belongings and leave. I will not contest the decision because my time would have ended.
“But if the employer says they are renewing the contract, then I will continue.”
Asked about the issues of incompetence raised in the Forum’s letter, which form the basis of its demands for the Commissioners’ ouster, including errors in constituency delimitation before the October 2022 elections and the wrongful allocation of Proportional Representation (PR) seats, Mr Mokhochane said these were operational issues the Commission had encountered but had managed to resolve.
“In any workplace, there are both good and bad moments. But during times like these, only the bad is highlighted so that people focus on that alone.
“If you remember, with the constituency delimitation issue, the court said we should not demarcate constituencies. In our work, there were about 20 constituencies that surpassed the tolerated margin. The court acknowledged that we did a good job but instructed us to correct those mistakes, and we did.”
He said taking legal steps to resolve the PR allocation issue was necessary and within the law.
“Following the law, even suing ourselves, is part of the legal framework. The lawmakers foresaw that such errors might occur and provided mechanisms for the IEC to correct them through the courts.
“It is not ideal to make mistakes, but when we discovered an error, we came out publicly and informed the relevant parties. Imagine if we had swept it under the rug, where would we be today?”
Petlane
For his part, Mr Petlane declined to comment on the Forum’s letter, saying he had not seen it but he confirmed that they had complied with the contractual clause requiring them to indicate whether or not they seek renewal of their contracts.
“I will not comment about the letter because I have not seen it. I will not give you specifics regarding my contract renewal, but we have written to the relevant authorities (Council of State) on the matter.
“The law says I should indicate whether I want renewal or not, and the employer will decide whether to extend or not. So, we have complied with the legal requirements of our contracts but I will not reveal the details of my submission,” Mr Petlane said.
Asked about the issues raised by the Forum, Mr Petlane responded:
“There were challenges that we came across — they are correct. I can only say that those are their opinions.
“I will not provide a comment on things I have not seen, and I will also not speak without consulting my colleagues.
“I will only respond on the issue of compliance — yes, I have complied, and I am now waiting. I will not tell you whether I want renewal or not. The employer will decide whether to extend or not.
“Those who wrote the letter did so to express their opinions based on how they assess things,” he said.
Dr Mokobocho could not be reached for comment as her mobile phone was unreachable.
Background
Several opposition parties have previously called for the sacking of the three commissioners, accusing them of bungling the 7 October 2022 general elections.
The political parties had written to the Council of State in January and again in April 2022, demanding the sacking of the trio, arguing that they had proved to be “incompetent” in their preparation of national elections.
The IEC leadership was accused of, among others, violating voters rights after several voters failed to vote during the 7 October 2022 general elections as their names were missing from the voters’ roll.
The parties also lambasted the IEC for erroneously allocating proportional representation (PR) seats and failing to account to the public for the “grave error”.
The IEC had admitted to erroneously allocating three PR seats to the DC and one to the Alliance of Democrats (AD) post the 7 October 2023 general elections.
The IEC subsequently asked the High Court to re-allocate the four seats to the Basotho Patriotic Party (BPP), Basotho National Party (BNP), United For Change (UFC) and Lesotho People’s Congress (LPC).
BPP Leader Tefo Mapesela, ‘Masetota Leshota from BNP, Tota Mohlominyane of UFC and Rev Paul Masiu of LPC were then sworn in as MPs in April 2023 to replace Morapeli Motoboli, Maletsema Letsoepa, Katleho Mosotho (all of the DC) and Lebohang Mochaba from the AD.
This after the High Court, sitting as a Court of Disputed Returns, granted the IEC the greenlight to substitute the quartet on 30 March 2023.
The judgment was granted by Justices Moroke Mokhesi, Keketso Moahloli (now resigned) and Fumane Khabo.
Political parties argue that these mishaps disqualify these commissioners from returning to office. In fact, they had wanted them fired a long time ago. But the Commissioners believe they did a good job in delivering the 7 October 2022 elections and deserve a second bite of the cherry.
