- DC wants to stop the electoral body from stripping it of three PR seats…
- RFP backs its rival, says its “only interest is ensuring free and fair elections”…
Mohalenyane Phakela/Moorosi Tsiane
IN an unexpected turn of events, the governing Revolution for Prosperity (RFP) party has joined forces with the Democratic Congress (DC) to oppose the Independent Electoral Commission (IEC)’s Constitutional Court application to strip the DC and the Alliance of Democrats (AD) of some proportional representation (PR) seats.
Both parties are arguing that the IEC’s application should be thrown out because it has been filed in the wrong court which has no jurisdiction over the matter. They contend that it should have been filed in the High Court instead. The Constitutional Court began hearing the matter yesterday and it continues today.
The IEC approached the Constitutional Court on 24 October 2022 for an order to strip the DC of three seats and the Alliance of Democrats (AD) of one PR seat. The electoral body submitted that it had “erroneously” awarded the four seats to the parties. It said it had made the error while calculating their share of PR seats after the 7 October 2022 general elections.
It wants to reallocate three of the seats to the Basotho National Party (BNP), Basotho Patriotic Party (BPP) and United for Change (UFC). It does not say who the fourth seat will be allocated to.
All in all, the IEC had allocated 11 PR seats to the Mathibeli Mokhothu-led DC which won 18 of 79 constituency seats at the 7 October 2022 polls. The electoral body had also allocated three PR seats to Monyane Moleleki’s AD which had only won two constituency seats. With its total of five seats, the AD subsequently agreed a deal to form a governing coalition with the RFP which won a landslide 56 out of the 79 seats. The other party in the incoming governing coalition is Selibe Mochoboroane’s Movement for Economic Change (MEC) which has a total of four seats. Should the IEC application succeed, the DC will be the hardest hit by the loss of the three seats. Its numbers will come down to 26 seats. This could adversely affect it since the more numbers a party has the better its influence.
The AD has not even bothered to challenge the IEC move to strip it of one PR seat. This is probably because the loss of the seat would not affect its standing as a member of the RFP-led governing coalition. The coalition would still have a combined 64 seats, just enough to remain as the government.
It is therefore a curious development that the RFP, which has nothing to lose, has decided to join forces with the DC while the AD has not lifted a finger to try and save its seat.
The IEC and its director of elections, Mpaiphele Maqutu, are the first and second applicants respectively in the application.
The Speaker of the National Assembly, the Clerk of the National Assembly, His Majesty King Letsie III, the DC, the AD, Morapeli Motoboli, ‘Malisema Letsoepa, Katleho Mosotho, Maboiketlo Maliehe, Attorney General Rapelang Motsieloa and Lebohang Mochaba are the first to 11th respondents respectively.
Motoboli, Letsoepa and Mosotho are the three DC members who were “erroneously” allocated the PR seats while Mochaba was “erroneously” allocated a PR seat under the AD banner. Maliehe had erroneously been cited as the beneficiary of the AD PR seat when in actual fact the recipient was Mochaba. The IEC then filed an interlocutory application to include Mochaba in the list of respondents.
The IEC application was supposed to be heard a fortnight ago. However, on that date, the Constitutional Court bench comprising of Justices ‘Maseforo Mahase, Moneuoa Kopo and Maliepollo Makhetha resolved to defer the case to 16 November after the RFP had indicated that it wanted to be joined in the matter.
At the time, the RFP did not say why it wanted to be part of the proceedings even if it was not directly affected by the IEC’s “error”. Yesterday, the RFP’s lawyer, Letuka Molati, told the court that his client wanted to be joined to the proceedings because of its “interest in ensuring that elections are free and fair”.
He said the RFP’s right to join the proceedings was based on section 106(3) of the National Assembly Electoral Act which states that “a political party which participated in the elections or a candidate may apply to the High Court for a re-allocation of the (PR) seats if it is in the interest of fair elections”.
Arguing his client’s case, Adv Molati said, “This section confers legal interest on a party which participated in elections, whether it won or not, as long as it is in the interests of free and fair elections.
“We (RFP) are here because we want to contribute to free and fair elections. There is no prejudice of any nature if we are allowed to intervene.”
The RFP’s application was opposed by the BPP and the BNP.
Arguing on behalf of the BPP, Attorney Monaheng Rasekoai said the RFP should not be joined to the matter because the main ruling party would not be affected by the IEC’s decision to strip the DC and AD of the PR seats.
“The position of the law is that the litigant has to show that he is likely to be proximately affected by the decision. The RFP had no PR seats therefore theirs is a remote interest. Their only argument is that their coalition government might be affected if the AD loses the PR seat. Yet the AD, which is proximately affected by the IEC decision, has decided not to participate in this litigation. My humble submission is that this RFP application should be dismissed with costs,” Mr Rasekoai argued.
On his part, the BNP’s lawyer, Christopher Lephuthing, said, “There should be an abundance of caution when interpreting section 106 0f the National Assembly Electoral Act because it doesn’t give a legal right to a political party that has no direct interest in the allocation of PR seats.
“For one to file for intervention they should have a legal interest and in this case there are no allegations of electoral malpractice so the matter does not involve the RFP,” Adv Lephuthing argued.
Judge Mahase adjourned proceedings for about two hours. When the court resumed its session at about 1pm, she said the RFP application had been granted.
“It is the view of this court that section 106(3) does not exclude any political party from approaching the courts. It would be unfair to exclude the RFP from these proceedings. The opposing parties (BPP and BNP) have failed to make out a case against the intervention of RFP. The application is accordingly granted as prayed but with no costs,” Judge Mahase said.
Immediately after that, the court adjourned for lunch and proceedings resumed at about 3:30pm. This time the court heard arguments raised by the DC who submitted that the IEC’s application should be thrown out because it had been filed in the wrong court.
The DC’s lawyer, Motiea Teele, argued that the IEC was wrongfully before the Constitutional Court as the High Court was exclusively empowered to deal with its application.
“The applicant (IEC) followed the incorrect procedure which deviates from what the constitution prescribes. Section 69 (1) (d) of the constitution states that the High Court shall have jurisdiction to determine whether PR seats have been properly allocated.
“Section 125 of the National Assembly Electoral Act says the High Court has exclusive jurisdiction to hear and determine any question as to whether PR seats have been properly allocated,” Adv Teele argued.
The court had to adjourn proceedings at 5pm after Adv Teele submitted that he had to drive back to his home in Leribe and he did not want to travel at night.
The matter continues today.