A LEADING human rights organisation says the Independent Electoral Commission (IEC) should go ahead with the delimitation of constituencies in preparation for next year’s elections. This notwithstanding the recent drafting of a constitutional amendment bill aimed at suspending the exercise.
Even if the amendment bill were to be approved by parliament, the law cannot be applied retrospectively to stop the delimitation exercise which was begun by the IEC in 2018, the Transformation Resource Centre (TRC) said in a weekend statement to the Sunday Express.
The TRC was reacting to National Independent Party (NIP) leader, Kimetso Mathaba, who last week drafted a constitutional amendment bill aimed at suspending the delimitation of constituencies until after next year’s elections which are due any time after September 2022.
Mr Mathaba’s bill seeks to amend section 67 of the constitution which empowers the IEC to delineate constituencies every 10 years.
The bill comes barely two months after NIP and other congress parties, including the Democratic Congress (DC), sharply opposed their governing coalition allies, including the All Basotho Convention (ABC), who had proposed that the IEC proceeds with the delimitation of constituencies ahead of next year’s elections.
At that September 2021 meeting of the political parties and the IEC, the congress parties even threatened to go to court if the IEC proceeded with the delimitation exercise which it had begun in 2018.
Although the IEC is constitutionally mandated to delineate constituencies, the congress parties demanded that the electoral body leaves the exercise in the hands of the National Reforms Authority (NRA) which is currently seized with work aimed at implementing constitutional and other reforms seen as crucial to achieving lasting peace and stability in Lesotho. They argued that the delimitation should not go ahead on the basis of the 2016 national census which they said was now outdated.
But the TRC insists that the IEC should continue with the delimitation exercise. It says the elections body is an independent body which should not be swayed by the bill which proposes to clip its powers.
“The TRC is of the considered opinion that the proposed amendment poses no threat to the IEC’s constitutional obligation of constituency delimitation, which the commission has already demonstrated that it is ready to execute, as per the recent Legal Notice,” the TRC states.
This was in reference to the 24 September 2021 gazette issued by the IEC’s acting Director of Elections, Lehlohonolo Suping, inviting the political parties to make representations on the proposed constituencies as contained in the elections body’s preliminary delimitation exercise.
The preliminary delimitation exercise was conducted in 2018 under the previous IEC commissioners, Mahapela Lehohla, ‘Mamosebi Pholo and Makase Nyaphisi whose tenure expired in January 2019.
Their successors, Mphasa Mokhochane, Karabo Mokobocho and Tšoeu Petlane, were appointed in November 2020.
In the preliminary delimitation exercise, the IEC proposes to reduce the number of rural constituencies and create more urban ones because of migration. However, the congress parties have opposed the proposals amid indications that they fear they will lose next year’s elections if the rural constituencies they consider to be their strongholds are reduced.
In his draft bill, Mr Mathaba states that it would be prejudicial to continue with the delimitation of constituencies because the country is reeling from the impact of the Covid-19 pandemic and it is seized with the national reforms process.
“The Bill proposes to empower the Constituency Delimitation Commission to postpone or suspend the review of the constituencies until such time after the elections as the Commission may consider necessary or appropriate, taking into consideration that the constitutional reforms process which is going to address such matters is underway, and Lesotho is currently in a state of natural disaster and emergency which is thread to human health and life due to heavy rainfalls and the Covid-19 pandemic,” Mr Mathaba states in the Statement of objectives and reasons of the tenth constitutional amendment Bill.
“According to the Bill, the Commission also has the power to suspend such a review if the census of the population is delayed or there is a likelihood that the results of the census of the population results are unreliable.”
The Bill also seeks to empower the commission to suspend the delimitation “if there is a public emergency or if it is in the national interest” to do so.
The congress parties’ position on the delimitation exercise is at odds with that of the ABC, the biggest party in the governing coalition. The ABC, its traditional Basotho National Party (BNP) ally and the opposition Nqosa Mahao-led Basotho Action Party (BAP) want the IEC to conclude outstanding activities such as the delimitation of constituencies and the cleaning up of the voters’ roll.
The congress parties’ position has also been opposed by the TRC which argues that even if Mr Mathaba’s bill were to be approved, the new law cannot be applied retrospectively to a delimitation exercise that is already in progress.
“This idea (that the delimitation exercise should proceed) is reinforced by the fact that the law does not, and or will not apply retrospectively. At the risk of repetition, the constituency delimitation process has already begun and the IEC was already seeking input from the local authorities.
“The TRC wished to draw the attention of the public to the point that, in the case of any possible shenanigans that may be done in an attempt to frustrate the constituency delimitation process, the IEC has an obligation to use its arsenal. It is armed by section 66D (1) of the constitution read together with Section 140 of the National Assembly Electoral Act to defend itself against any attempts to frustrate the execution of its constitutional obligation.
“The TRC further wishes to inform the public that…the IEC is an independent non-partisan organisation, which is created by the constitution and cannot be subjected to the direction or control of any person or authority especially that may result from the Bill in question. In essence, the IEC is empowered and guaranteed under the constitution to carry out its functions without undue interference from any other body including parliament in the fashion currently under review. The TRC informs the public that the IEC has functional independence and institutional autonomy guaranteed despite any political ploys that may be aimed at undermining its autonomy and independence.”
The human rights body further argues that politicians cannot just propose constitutional amendments without the involvement of the National Reforms Authority (NRA) which is currently spearheading processes that are expected to culminate in the implementation of constitutional, security sector, judicial, media and governance reforms.
“The TRC would like to allay any fears that the delimitation process may be hindered by ill-advised and irrational amendments by unscrupulous politicians. The Centre wishes to remind those who may have any intentions to interfere with the legitimate constitutional processes under the guise of amending the constitution without the involvement of the NRA that they are undertaking an illegitimate exercise.
“The Centre is of the considered position that any amendment to the constitution should pass through the NRA for its consideration. The NRA was established to coordinate the processes around the implementation of the Plenary II (national stakeholders conference’s) decisions (on proposed constitutional and other reforms). In that regard, we reiterate that any purported amendments of the constitution without the engagement of NRA lack legitimacy.
“The Centre wishes to remind the public that the country has constitutional priorities which are outlined in Plenary II Report which form the basis for the reforms process, and constituency delimitation does not form part of the reforms package.
“Therefore, we reiterate that the purported constitutional amendment is ill-advised. The Centre further wishes to point out that since the IEC has already publicised a gazette that invites submissions on the proposed constituency delimitation, such a process should not be discontinued,” the TRC states.