TRC challenges ConCourt ruling on IEC

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Mohalenyane Phakela

THE Constitutional Court erred in its 11 August 2020 ruling which declared that the Transformation Resource Centre (TRC) and its two co-applicants lacked the legal standing to stop political parties from recruiting new Independent Electoral Commission (IEC) commissioners without the active participation of civic groups.

This according to the TRC and its co-applicants, Maieane Khaketla and the African Ark political party, who have now gone to the Court of Appeal to try and overturn Acting Chief Justice ‘Maseforo Mahase and Justice Keketso Moahloli’s judgment.  The two judges had totally misdirected themselves in passing such an untenable ruling without considering the merits of the applicants’ arguments, contends the TRC.

The appeal’s net effect is to further delay the appointment of new IEC commissioners to replace Mahapela Lehohla (former chairperson) and commissioners; Advocate ‘Mamosebi Pholo and Dr Makase Nyaphisi.

The Court of Appeal’s next session is in October.  The trio’s contracts expired on 7 January 2019 but the government refused to renew them. Their own legal bid to remain in office failed.

In their latest application, the TRC and its co-applicants argued that the Constitutional Court was wrong to treat their case as a rights-based application whereas it was a supremacy clause review. They also argue that the Constitutional Court had jurisdiction to entertain their application.

“The court a quo (lower court) erred and misdirected itself by concluding that all three applicants do not have the requisite locus standi (legal authority) to challenge the regularity or otherwise of the appointment of commissioners of the Independent Electoral Commission,” part of the appeal reads.

“The court a quo erred and misdirected itself by failing and or declining to make a determination over the application for contempt of court that was placed before it.

“The court a quo erred… by exclusively categorising the litigation as a rights-based review when in reality it also incorporated a supremacy clause review litigation particularly with respect to the two voluntary organisations (TRC and African Ark). The court misdirected itself by concluding that it has no jurisdiction to hear and determine the matter sitting as a constitutional panel but that the relief sought could be attained in the High Court sitting in its ordinary revisionary jurisdiction. This was an improper exercise or judicial discretion.”

The Council of State, His Majesty, the Directorate on Corruption and Economic Offences (DCEO), the Minister of Parliamentary Affairs, Workplace Solutions, the IEC, the Attorney General, 28 political parties and 28 individuals who had applied for the positions of IEC commissioners are the first to 63rd respondents respectively.

The 27 June 2019 Constitutional Court application by the TRC, Rev Khaketla and the African Ark sought an order that the recruitment exercise of the new commissioners be re-done with the active participation of civic groups through a public interviewing process.

The applicants also wanted the court to nullify the appointment of Workplace Solutions in the whole exercise. They contended that Workplace Solutions was awarded the tender without following proper bidding processes in contravention of the Public Procurement Regulations of 2007. They even alleged that the firm did not have a tax clearance certificate to qualify for bidding.

The African Ark was one of the political parties involved in the processes of recruiting and appointing new IEC commissioners while Rev Khaketla was one of the applicants to the IEC commissioners’ posts.

The Constitutional application was heard by Justices Mahase, Moahloli and Lebohang Molete. Justice Molete died on 30 May 2020 before the case had been finalised. The judgement was delivered by Justices Mahase and Moahloli.

They ruled that the applicants were wrong to approach the Constitutional Court before exhausting other remedies including beginning their application at the High Court.

Justice Mahase said the applicants lacked the legal standing to file the application.

“According to the provisions of section 66(4) of the constitution, it is the duty of the Council of State, and not of any of the applicants, to select the names of persons to be submitted to the King under subsection 3 (of section 64).

“The Council of State shall request all registered political parties to jointly propose to the Council the list of not less than five names from which the King will select members of the IEC. The duty of selection of names is placed on the Council of State whilst the list is proposed by political parties jointly.

“There is nowhere in the constitution where the first applicant (TRC) plays any role in the proposal of names from where the Council of State will select names to submit to the King. As for the procedure which the applicants complain, they have a remedy in terms of rule 50 of the High Court Rules.”

Justice Mahase also said the applicants had prematurely approached the court without exhausting all remedies available to them.

“…the applicants have not exhausted other available remedies in the High Court before approaching the constitutional court. Rules pertaining to interdict, specific performance and review are common law remedies for which the applicants have a remedy in the High Court.

“The constitutional court has no jurisdiction in this matter. All in all, the applicants in approaching this court as they did, abused court processes and failed to exhaust local remedies in the urgent quest to stop the proceedings of the Council of State at the eleventh hour.

“They dismally failed to apply their minds to the proper reliefs which can be sought for in a constitutional litigation. The decision of this court is that it has no jurisdiction to entertain this matter.”

Justice Mahase said there was conflict of interest on the part of the TRC which ought to have prevented it from filing a lawsuit in a case involving the IEC.

“The TRC and the IEC have a working relationship through which the TRC has been given huge sums of money by the IEC.

“This confirms that the first applicant (TRC) has received benefits from the sixth respondent (IEC) despite that the first applicant wants to participate in the wide selection and shortlisting of top officials in the very institution which it has working relationship (sic). This is a clear conflict of interest,” Justice Mahase said.

On his part, Justice Moahloli said the TRC’s claim that it has a right to participate in the selection of IEC commissioners was unconstitutional.

“In my view, the TRC has failed to prove that it has sufficient personal interest in this matter. It cannot be said to be the citizen of Lesotho having a right to participate in the conduct of public affairs…

“It cannot therefore pretend to have locus standi to apply to this court for redress. For this reason, it cannot claim any reliefs sought in the notice of motion… The application is dismissed,” Justice Moahloli said.

The ruling nonetheless seems legally incompetent and incomprehensible. The TRC was challenging the unconstitutionality of an appointment process, that excludes vast swathes of society, to a key institution of state. How the TRC, a key civic group, can then be said to have no legal authority to seek the revision of such a patently undemocratic appointment process to a key institution of state is baffling.

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