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End of the road for IEC Commissioners

Mohalenyane Phakela

IT is now the end of the road for former Independent Electoral Commission (IEC) bosses, Mahapela Lehohla, ‘Mamosebi Pholo and Makase Nyaphisi after the Court of Appeal dismissed their bid to remain in office.

The three had appealed to the apex court to remain in office pending the finalisation of processes to appoint their successors. It however dismissed their application with costs.

The case was heard by Namibian Judge Petrus Damaseb, Johann Van der Westhuizen (South Africa) and Tapfuma Mtshiya (Zimbabwe). The judgement was read out by Court of Appeal president Justice Kananelo Mosito on Friday.

“The appeal is dismissed and the costs of appeal to be paid by the former commissioners, namely, Justice Lehohla, Adv Pholo and Dr Nyaphisi,” Justice Mosito said.

He, however, did not give reasons for the judgement.

The judgement means that the three ex-commissioners have exhausted all possible legal remedies and must now vacate office.

They had appealed to the apex court in the hope of overturning an October 2019 Constitutional Court ruling against them on the same matter.

In dismissing their application last October, the Constitutional Court bench comprising of Acting Chief Justice ‘Maseforo Mahase, and Justices Lebohang Molete and Keketso Moahloli, ruled that there was no constitutional basis to their application and the trio could have approached the ordinary courts for relief.

Former IEC chairperson, Justice Lehohla, and former commissioners Adv Pholo and Dr Nyaphisi’s contracts expired in January 2019 and the government refused to renew them.

The trio then filed their Constitutional Court application seeking to remain in office. This was in response to the July 2019 Constitutional Court application by the Transformation Resource Centre (TRC) and two others for the nullification of the appointment of Workplace Solutions as the consultants in the recruitment of new IEC commissioners.

The TRC’s co-applicants were IEC hopeful, Maieane Khaketla, and the African Ark. The latter is one of the political parties involved in the processes to recruit and appoint new commissioners.

The TRC wants the court to order the recruitment exercise of the new IEC commissioners to be re-done with the active participation of civic groups through a public interviewing process. The TRC also wants a final order which nullifies the appointment of Workplace Solutions as the consultants in the whole recruitment exercise.

The TRC contends that Workplace Solutions was awarded the tender without following proper bidding processes in contravention of the Public Procurement Regulations of 2007.  It has been suggested the firm did not even have a tax clearance certificate. The Council of State has been interdicted against advising His majesty King Letsie III to appoint new IEC commissioners pending the finalisation of the TRC and others’ application.

It was on the basis of the TRC’s court application that former chief Justice Lehohla, Advocate Pholo and Dr Nyaphisi approached the Constitutional Court for an order compelling the government to allow them to remain in office until the appointment of new commissioners.

However, Justices Mahase, Molete and Moahloli dismissed their application, forcing them to petition the Court of Appeal which has now also dismissed their petition.

The Constitutional Court on 16 October 2019 ruled that: “It (the application) is defective for many reasons suffice to say that applicants can get relief in the High Court exercising its ordinary civil jurisdiction and…there is abundant authority to the effect that the Constitutional Court should not be approached where ordinary courts have jurisdiction.

“Applicants ceased to be the chairman and commissioners of the IEC in January 2019.

“The delay in appointing substitute commissioners is not their problem and does not authorise them to litigate as the IEC in this case. A fixed term of appointment comes to an end upon expiry of their period. The fact that applicants stayed in office beyond their stipulated 5-year period does not make it legal; and particularly being aware that their offer to continue as commissioners had been rejected. Any expectation they may have had to continue should have been dispelled by that rejection,” the Constitutional Court ruled.

The IEC is currently operating without commissioners and this has resulted in the freezing of its operations including the delineation of constituencies. A by-election remains outstanding in Makhoroana constituency after the December 2020 death of  All Basotho Convention (ABC) legislator, Lefu Hlomelang.

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