IEC wins delimitation case

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Moorosi Tsiane

HIGH Court Judge Molefi Makara has dismissed Democratic Congress (DC) secretary general Tšitso Cheba and DC member, Lethusang Kompi’s application to stop the Independent Electoral Commission (IEC) from forging ahead with its ongoing delimitation exercise ahead of elections due in October this year.

In dismissing the application this week, Justice Makara said the High Court had no jurisdiction over the matter since the delimitation exercise was ongoing and had not been concluded. He said the court only reviewed an exercise when it had been completed. As matters stood, the process was ongoing and therefore there was nothing for it to review, he said.

Mr Cheba had filed the application alongside Mr Kompi, who is the DC’s aspiring legislator for the Qaqatu constituency.

The duo had argued that the IEC must be 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 commission’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 IEC was the first respondent while other political parties including the All Basotho Convention (ABC) and the DC’s other current coalition government partners were also cited as co-respondents. All in all, there were 47 respondents in the lawsuit.

On Monday, Advocate Christopher Lephuthing who was representing the BNP, argued that it was wrong for the duo to challenge the delimitation exercise decision while the same matter was still being discussed in parliament.

“They are bringing before you, My Lord, a non-justiciable political question and we pray that you dismiss it with costs.

“A matter that is pending before parliament cannot be deliberated before the court,” Adv Lephuthing argued.

On his part, IEC lawyer, Kabelo Letuka, argued that the matter had been prematurely brought to the court.

“Section 153 (4) of the National Assembly Electoral Act of 2011 states that an elector or a political party registered with the IEC who is dissatisfied with the Commission’s decision (on the delimitation of constituencies) may, within 7 days of the receipt of the notification, submit that decision to the High Court for review.

“However, the applicants did not raise any objections. The applicants cannot approach the court on an IEC decision which they did not raise an objection to. They want the court to indirectly take over IEC administrative functions. They filed the application prematurely and our submission is that the matter be dismissed with costs,” Adv Letuka argued.

However, the applicants’ lawyer, Letuka Molati, counter-argued that the delimitation exercise had been done much later the stipulated period and it was therefore a nullity.

“The constitution states that the demarcation of constituencies must be done every 10 years,” Adv Molati said.

“The last demarcation was done in 2010 and the next one was to start in 2018 up to 2020. But that was not the case. The delimitation was done after that time and we are challenging the legality of that process. They are not following the constitution because the delimitation has been done beyond the stipulated time,” he argued.

Handing down his verdict on Tuesday, Justice Makara dismissed the application on the grounds that the court had no jurisdiction over the matter.

He said the applicants should have approached the court before the IEC had completed the delimitation exercise for a review of its decisions and not before the process had been completed as they did.

“They (Applicants) had to first of all establish the basis for the review. They should not have come to court before the (delimitation) process had culminated in a decision (by the IEC). Such a decision would establish a foundation for the application for a review.

“In the premise, the court rules that at the time the application was lodged, the delimitation had not culminated in a decision where the court could assume jurisdiction. Therefore, the court determines that it has no jurisdiction over the matter,” Justice Makara said.

The DC has another pending application in the Constitutional Court to nullify the delimitation exercise.

The party joined forces with Movement for Economic Change (MEC) leader, Selibe Mochoboroane, to file the application.

In their court papers filed last week, they want the court to nullify the 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 have been cited as 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 gazette (Legal Notice 37 of 2022), which empowers the IEC to review the constituency boundaries, to be 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.

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