THE BASOTHO Democratic National Party (BDNP) on Thursday lost a court bid to nullify the allocation of Proportional Representation (PR) seats for the 9th National Assembly.
The party lodged an application before the High Court on 1 April seeking an order to annul the seat-allocation by the Independent Electoral Commission (IEC) following the 28 February 2015 snap elections.
The allocation left the BDNP with no PR seat, prompting the court action, in which the party argued the calculation wrongly excluded the votes of independent candidates.
However, the High Court on Thursday dismissed the application with costs.
The court ruled although the votes left out are substantial, they do not make the allocation invalid because the law provides for that calculation.
The court further ruled the law gives political parties and independent candidates a choice to either submit a list of candidates to be considered for PR seats or not.
Independent candidates did not submit lists for PR seats hence their votes, 5651 in total, were not considered during the calculation.
The court noted: “This number of votes is not a small one and is, in fact, a figure that could have at least been reflected and possibly yielded a different result with the possible inclusion of other parties that have otherwise been left out in the allocation of PR seats, the present applicant included.
“Otherwise, it means some votes are validly cast in vain when they are for independent and indeed, courageous candidates who choose to go it alone against stronger contestants.
“However, for the reason that the exclusion is permitted by the law, even if the court was to interpret the relevant sections as well as Schedule 3 most purposively and most benevolently, this exclusive effect cannot be avoided in the PR seat-allocation as it was clearly intended by the legislature.”
The application was also dismissed on the grounds it was served on other respondents beyond the specified time.
“In this respect, it is correct that Section 126 (of the National Elections Electoral Act of 2011) is couched in mandatory terms and has to be complied with to the letter.
“In this connection, Mr (Molefi) Ntlhoki KC submitted that the matter was launched and served in accordance with the timelines.
“However, the truth of the matter is Order No 35 of 2015 which announced the results was published on 15 March 2015 whereas the present application was brought on 1 April but only properly served on the respondents on 18 May 2015 because the first service was improper.
“In this connection, it is worthy to mention that demonstrably and it was conceded that service was completed 59 days after publication of the list of elected candidates when the first party was served which effectively made it fall beyond the mandatory 30-day period.
“This was fatal to the petition because the relevant provision is couched in peremptory terms and thus must be strictly complied with,” read the judgment.
But the court recommended that the law regarding the allocation of PR seats be reviewed.
The court noted: “In view of what we have already stated above and having regard to the noble purpose of the PR model, it is important to note that exclusivity that is inherent in the 2011 Act, in which votes cast for political/independent candidates that did not submit lists has the effect of invalidating the other valid votes of the electorate that voted for those parties, needs to be seriously relooked and reviewed and we so recommend.”
The case was presided over by Chief Justice Nthomeng Majara, Justices Tšeliso Monaphathi and Semapo Peete.