…dismisses their IEC recruitment challenge
Moorosi Tsiane
ATTORNEY Tumisang Mosotho and human rights activist Tsikoane Peshoane’s hopes of becoming the new Independent Electoral Commission (IEC) commissioners have been dashed after the Constitutional Court dismissed their challenge on Friday.
The constitutional panel comprising Chief Justice Sakoane Sakoane and Justices Realeboha Mathaba and Itumeleng Shale dismissed the case, saying full reasons for the decision would be issued in due course.
Messrs Mosotho and Peshoane were among the candidates vying to replace outgoing commissioners Mphasa Mokhochane (chairperson), Karabo Mokobocho-Mohlakoana and Tšoeu Petlane, whose contracts expire this month.
Mr Mosotho was disqualified on the grounds that he still holds public office, while Mr Peshoane did not make it past the interview stage. The duo argued that they were wrongly eliminated and that the entire recruitment process was constitutionally defective.
The IEC, Work Place Solutions, shortlisted candidates John Maphephe, Fako Likoti, Retšelisitsoe Mohale, ‘Mamatlere Matete and Monyane Chelete, along with the Council of State and the Secretariat of the Forum of Political Parties, were cited as first to ninth respondents.
Their lawyer, Attorney Monaheng Rasekoai, argued on Monday and Tuesday that his clients had been unlawfully disqualified and that the recruitment process was fundamentally flawed. He also questioned the unusual procurement of the consulting firm that handled the process.
Central to their case was whether an active public servant, as defined under Section 154(3) of the Constitution, is eligible to compete for consideration as an IEC commissioner.
Mr Rasekoai insisted it was unlawful for Work Place Solutions and the Forum of Political Parties to disqualify Mr Mosotho—Lesotho’s current Ambassador to the United States—on the grounds that he holds public office.
He argued that the consultants and the Forum lacked the authority to disqualify applicants.
“They do not have powers to appoint; theirs is just to recruit and shortlist the candidates to the Council of State. The Constitution bestows the power of appointment upon the Council of State. These bodies should merely forward names for appointment,” Mr Rasekoai had submitted.
He further argued that eligibility to apply is not the same as eligibility for appointment.
“Any person who is still an incumbent public officer is eligible to apply, but upon appointment he cannot continue holding office. They are not the appointing authority, and it is premature to say he is disqualified because he can still resign at this stage.”
Mr Rasekoai also contended that Mr Peshoane, despite being interviewed, never received feedback about his performance.
“Failure to render their decision is an administrative malady. We have learnt now that he did not score well. The proper procedure is that applicants should be given feedback on their scores. 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, 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.”
He added that interviews could not be broadcast live because they were held on different days.
“…The interviews could not be made public because they were not done on the same day. However, they were covered by television but could only be aired once the process was completed.”
He maintained that the consultants and political parties were obligated to ensure that only qualified candidates progressed.
After hearing submissions from both sides, Chief Justice Sakoane announced that judgment would be delivered on Friday. When delivering it, Justice Shale dismissed the application.
She first gave a summary of the case.
“We will remember that there are two applicants before court, and the first applicant’s (Mosotho) cause of action is three-legged: first, that he ought not to have been disqualified at the application stage on the grounds that he is a public officer; second, that he was not informed of his disqualification on time; and third, that he impugns the appointment of the fourth respondent (Work Place Solutions) as a consultant against the Procurement Act 2023.
“The second applicant’s (Tsikoane) case is based on his disqualification, the appointment of the fourth respondent, lack of transparency in the recruitment process, regulatory non-compliance by participating political parties, and the claim that the 12th respondent (Forum of Political Parties) had delegated its constitutional mandate to Work Place Solutions.”
Justice Shale said the respondents had argued that both applicants had alternative remedies under the National Assembly Elections Act 2011 and the Procurement Act 2023.
“Having considered the above issues, the following order is made: the case is dismissed and there is no order as to costs. Full reasons for this order will follow.”
This then gives greenlight for Work Place Solutions to proceed with the recruitment process.