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‘DC, Mochoboroane court case could force polls postponement’


Mohalenyane Phakela

A LAWYER for the Independent Electoral Commission (IEC) has warned that elections could be postponed if the ruling Democratic Congress (DC) and cabinet minister Selibe Mochoboroane succeed in the constitutional application to set aside the constituency delimitation process.

Advocate Kabelo Letuka said such an outcome would undo all the work done by the IEC to date and force it to redo the delimitation exercise. At least four months would be required to conduct a fresh exercise. It would then be impossible to hold the elections on the 7 October as proclaimed last week by His Majesty, King Letsie III, Adv Letuka said in a weekend interview.

The second biggest party in the All Basotho Convention (ABC)-led governing coalition joined forces with Mr Mochoboroane to petition the Constitutional Court to set aside the constituency delimitation process, arguing that it was done out of the 10 years period prescribed by section 67 of the Constitution.

In their constitutional application filed in May, they want the court to nullify the recent delimitation of constituencies and order the IEC to hold the elections using the 2010 constituency boundaries model which was used for the 2012, 2015 and 2017 general elections.

The IEC, Law and Justice Minister Lekhetho Rakuoane, Attorney General Rapelang Motsieloa and 50 other political parties have been cited as first to 53rd respondents respectively in the application. The cited parties include the ABC, Basotho National Party (BNP), Lesotho Congress for Democracy (LCD) and business mogul Sam Matekane’s fledgling Revolutionary for Prosperity (RFP).

The electoral body has already lost the first part of the legal battle. It had sought to have the case thrown out on the grounds that the Constitutional Court did not have the jurisdiction to entertain the DC and Mr Mochoboroane’s application.

The electoral body and its co-respondents had argued that the applicants had jumped the gun by going straight to the Constitutional Court without having raised with the IEC.

But on Wednesday, the Constitutional Court bench comprising of Chief Justice Sakoane Sakoane (presiding) and Justices Realeboha Mathaba and ‘Maliepollo Makhetha threw out the IEC argument.

The bench said it would deliver the reasons for its decisions within a fortnight. It said on that day, it would also deliver judgement in the main application by the DC and Mr Mochoboroane.

They only heard from the applicants’ lawyer, Motiea Teele, and the IEC’s lawyer, Adv Letuka.

Other lawyers for the other respondents were not given the opportunity to make their arguments due to time constraints. Justice Sakoane said they would deliberate the matter on the basis of their written arguments as contained in their court papers.

The lawyers who did not make any verbal argues were Attorney Monaheng Rasekoai, Advocates Christopher Lephuthing and Fusi Sehapi.

Mr Rasekoai represents Professor Nqosa Mahao’s Basotho Action Party, Adv Lephuthing the BNP and Adv Sehapi represents the RFP.

The delimitation exercise was first challenged in December 2021 by DC secretary general, Tšitso Cheba, and the party’s aspiring MP for the Qaqatu constituency, Lethusang Kompi.

The two argued that the IEC should be stopped because it had begun delimiting constituency boundaries when it had no commissioners in 2018.

They argued that the delimitation exercise was conducted under the supervision of the IEC’s director of elections and not the commissioners as provided for by section 135 of the National Assembly Act of 2011. Therefore, the delimitation exercise was illegal and must be stopped since it was started by unauthorised people, Messrs Cheba and Kompi had argued.

High Court Judge Molefi Makara ruled that he had no jurisdiction over their application.

The DC then joined forces with Mr Mochoboroane to file a fresh application this time in the Constitutional Court. The latest application was occasioned by the issuance of a gazette in April 2022 by the IEC indicating that it had finished delineating the 80 electoral constituencies ahead of the elections.

Adv Teele argued on Thursday that the delimitation exercise was irregular as it had allegedly been conducted beyond the 2020 date when it should have been done.

“The timeframe set in the constitution which states that a review may be done after a period of eight years and not exceeding 10 years has been breached by the IEC.

“The process had to be done between 2018 and 2020 and not anytime after that. The circumstances under which the IEC says it is doing the review exercise do not exist. The delimitation was done on 13 April 2022 which is way out of that timeframe. They cannot proceed with the delimitation when that period has expired,” Adv Teele argued on behalf of the applicants.

He based his argument on section 67(3) of the constitution which states that, “The Commission (IEC) shall review constituency boundaries… not less than eight nor more than 10 years from the date of completion of the last review”.

The last constituency delimitation exercise was done in July 2010.

On his part, Adv Letuka counter-argued that the IEC was not bound by timeframes. He said the electoral body had begun the delimitation process in 2018 when the eight year period to review the constituencies commenced. He also argued that the IEC even invited representations from political parties and the public during the review period.

“Section 67(3) separates the review process from the alteration of constituencies. The IEC is bound to review constituencies in a period of between eight and 10 years after the previous exercise which was done in 2010.

“The IEC did invite political parties to make representations. The first applicant (DC) confirms in its papers that the IEC met with political parties in April 2018 for them to make representations. We have also attached the affidavits of area chiefs, which we picked randomly, who attest to the fact that we indeed held community gatherings in order to solicit voters’ representations,” Adv Letuka argued.

However, the judges were seemingly not satisfied with Adv Letuka’s argument that political parties and the public had indeed been invited to make representations in 2018. They demanded proof that there was communique to the stakeholders to make representations to the IEC.

But the lawyer insisted that this had happened even if he did not have the proof.

The bench then said it would deliver judgement within two weeks.

Adv Letuka subsequently told this publication that a ruling against the IEC could lead to the postponement of the elections which have already been scheduled for 7 October.

“The IEC has made great strides in preparing for the coming national elections. These include registering and transferring voters from their old constituencies to the ones within the vicinity of the areas where they now reside. There are new polling stations installed and tenders which have been issued in preparation for these elections.

“If the court decides that the IEC should use the old delimitation model, it would mean that all the preparations done so far have to be scrapped. The IEC would then have to prepare afresh for the elections which are due in two months’ time.

“It the process is started from scratch, it will not take anything less than four months and this will force the IEC to approach the Council of State to ask that the elections date be deferred because it would be impossible to meet the 7 October deadline. There are huge costs already incurred and having to prepare afresh may derail elections as there may not be a budget for that,” Adv Letuka said.

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