Moorosi Tsiane
PROMINENT lawyer, Attorney Tumisang Mosotho, and human rights activist, Tsikoane Peshoane, will tomorrow know whether they were erroneously disqualified from being appointed as the new Independent Electoral Commission (IEC) commissioners.
This after the two went to court to challenge what they described as a constitutionally flawed and improperly handled recruitment process for the commissioners.
The pair’s constitutional application was argued before a panel comprising Chief Justice Sakoane Sakoane and Justices Realeboha Mathaba and Itumeleng Shale on Monday and Tuesday this week. Judgement is due to be delivered tomorrow.
The duo was disqualified from the race to become IEC commissioners, but they insist the entire recruitment exercise was riddled with constitutional defects. They also question the unusual procurement of the consulting firm that handled the process.
They are asking the court to scrutinise the constitutionality and correctness of the procedures used to determine who should be appointed as commissioners.
Central to their case is the question of whether an active public servant, as defined under Section 154(3) of the Constitution of Lesotho, is eligible to compete for consideration as an IEC commissioner.
They further seek an interim order interdicting, prohibiting, and restraining the Council of State and His Majesty the King from convening any meeting to select IEC commissioners until their case is finalised.
Representing both applicants, Attorney Monaheng Rasekoai argued that it was unlawful for Work Place Solutions and the Secretariat of the Forum of Political Parties to disqualify Mr Mosotho, currently Lesotho’s Ambassador to the United States, on the grounds that he holds public office.
Messrs Mosotho and Peshoane are among the candidates vying to replace outgoing commissioners Mphasa Mokhochane (chairperson), Karabo Mokobocho-Mohlakoana and Tšoeu Petlane, whose contracts expire this month.
The IEC, Work Place Solutions, shortlisted candidates; John Maphephe, Fako Likoti, Retšelisitsoe Mohale, ‘Mamatlere Matete and Monyane Chelete, together with the Council of State and the Secretariat of the Forum of Political Parties, are cited as first to ninth respondents, respectively.
Mr Rasekoai argued that the consultants and the Forum of Political Parties lack the authority to appoint, and therefore cannot lawfully disqualify candidates.
“…They do not have powers to appoint; theirs is just to recruit and shortlist the candidates to the Council of State. There is power in the Constitution bestowed upon the Council of State to appoint. They should recruit and forward names to the Council of State for appointment,” he submitted.
He added that because the two bodies are not the appointing authority, it was premature for them to disqualify Mr Mosotho on the basis that he is a public officer.
“The Forum of Political Parties does not have a competence to question the status of the applicants. What the provision says is a person shall not be qualified to be appointed as a member of the IEC if he is a public officer.
“Any person who is still an incumbent public officer is eligible to apply, but upon appointment he cannot continue holding office as a public officer. Eligibility to apply is not the same as eligibility for appointment. They are not the appointing authority, and it is premature to say he is disqualified because he can still resign at this stage,” he argued.
He urged the court to interrogate the legal distinction between eligibility to apply and eligibility for appointment.
Mr Rasekoai further argued that Mr Peshoane, who was interviewed, did not receive feedback about his performance.
“The second applicant was interviewed and his name was not forwarded to the Council of State. The reasons were never provided.
“Failure to render their decision is an administrative malady. We have learnt now that he did not score well. The right procedure is that applicants should be given feedback on their scores after the interviews. Being a public process, it is only fair that applicants be informed how they performed.”
However, Attorney Qhalehang Letsika, representing Work Place Solutions and the Forum of Political Parties, countered that the consultants were lawfully appointed to assist political parties in executing their constitutional mandate to recruit and recommend candidates.
“…The political parties have been given a blank cheque to use any means they deem appropriate to run a fair, transparent and accountable process of recruiting candidates for the IEC Commissioner positions.
“The consultant’s role was to run the interviews and thereafter recommend to the political parties, who in turn forward recommended names to the Council of State,” he argued.
Mr Letsika added that interviews could not be broadcast live because they were conducted on different days.
“…The interviews could not be made public because they were not done on the same day. However, they were covered by the television but could only be aired once the process was completed.”
He maintained that the consultants and political parties had a responsibility to ensure only qualified candidates progressed through the process.
“The underlying issue is to ensure that people who meet the requirements participate throughout. A person is disqualified for being a public officer according to Section 66(6) of the Constitution of Lesotho,” he said.
After hearing submissions from both sides, Chief Justice Sakoane announced that the bench would deliberate and deliver an order tomorrow (Friday), with the full written judgment to follow early next year.
“…We are going to reflect on your submissions, so we propose that we give you an order on Friday this week and full reasons later in the first quarter of next year,” he said.
