Pascalinah Kabi/Nat Molomo
EMBATTLED Independent Electoral Commission (IEC) commissioners have lodged a High Court application to compel the government to reverse its decision not to renew their contracts and instead ensure that their tenure is extended by another five years.
The commissioners further want the High Court to interdict the government from advising His Majesty King Letsie III to appoint their successors pending finalisation of their main application.
The fight for the control of the IEC threatens to throw the country's entire electoral management system into disarray at a time several opposition politicians are urging their supporters to prepare for elections in light of the internal mayhem in the All Basotho Convention (ABC) which may collapse the current coalition government if left unattended.
The three IEC commissioners are Chairperson Justice Mahapela Lehohla, Advocate 'Mamosebi Pholo and Dr Makase Nyaphisi.
The trio were appointed for five year terms as IEC commissioners in 2014 but they have continued to occupy office despite the expiry of their contracts on 7 January 2019. Their continued stay in office has resulted in a power struggle which has seen them suspending Director of Elections, Letholetseng Ntsike, for alleged insubordination.
Dr Ntsike was suspended after she allegedly defied the commissioners' order for her to process payments for their incentives and the salaries of their drivers and secretaries.
She hit back saying she could not take orders from the commissioners' as their mandates had expired and had not been renewed.
The Thomas Thabane-led governing coalition has refused to renew the three commissioners' contracts despite their notable achievements in overseeing credible national elections in 2015 and 2017.
The commissioners have in turn dug in and refused to vacate office, arguing that the matter of the renewal of their contracts had been mishandled by the Thabane administration. As far as the IEC commissioners are concerned, it is not for the government to decide whether or not their contracts should be renewed. They say the government's role is restricted to forwarding their desire to have their contracts renewed to the political parties and thereafter to the Council of State for decision, something they say was never done. This failure, according to Dr Nyaphisi, is due to the government's desire to control the IEC by determining who is appointed to the body that has over the years presided over elections whose results have been accepted by political parties and deemed credible by SADC, the African Union, among other international observer groups.
At the heart of the dispute between the commissioners and the government is the latter's alleged failure to inform the country's political parties about their express request to have their contracts renewed after they expired on 7 January 2019.
The government, which had already decided against the renewal of their contracts, maintains that they should not be in office as they don't hold "title deeds" to remain in office permanently. The government insists there is nothing that compels it to renew the mandates of the IEC commissioners. Amid the gridlock, the three commissioners have hence decided to fight in the courts for a declaration that their contracts be renewed for another five years.
The government, the Minister of Law and Constitutional Affairs, The Council of State, the Budget Controller in the Ministry of Finance, the Minister of Finance and the Attorney General are cited as the first to sixth respondents respectively.
The commissioners want the High Court to order the respondents "to show cause, if any, why the employment contracts between 1st, 2nd and 3rd applicants, on the one side, and the 1st respondent (the government), on the other, shall not be declared to have been renewed for a further period of five years, respectively, on similar terms and conditions, until 7 January 2024".
They further want the respondents to "show cause why the 3rd respondent (Council of State) shall not be restrained and interdicted forthwith from advising His Majesty the King on the appointment of new members of the IEC, pending the determination of this application and or any appeal therefrom".
Justice Lehohla, Adv Pholo and Dr Nyaphisi have also pleaded with the court to direct and or order the fourth respondent (Budget Controller) to facilitate the authorisation of the appointment of Lebohang Bulane as the chief accounting officer of the IEC.
Immediately after suspending Dr Ntsike with effect from 4 March 2019, the commissioners appointed Mr Bulane to act in her position. The appointment was with effect from 8 March 2019. Mr Bulane has however, failed to discharge his mandate due to government's refusal to recognise his appointment.
"The IEC is without a Chief Accounting Officer as the 4th respondent (Budget Controller in the Ministry of Finance) refused to recognise the officer appointed by the 4th applicant (IEC) as a result of some misgivings as to the legal position of the office of the members of the 4th applicant. This may lead to financial paralysis of the 4th applicant," the commissioners state in their court papers.
In his founding affidavit, Justice Lehohla argued that despite the expiry of their contracts, even the government had continued to recognise them as members of the IEC and that "at the end of January 2019, February 2019 and March 2019, the government of the Kingdom of Lesotho continued to pay us our normal monthly salaries as before".
He said the Council of State continued to recognise them as commissioners and, that was made clear in the letter of the Secretary of the Council of State dated 21 January 2019. He also said several government ministries, whom they have dealings with, continue to regard them as IEC commissioners.
"For example, when the Director of Elections of the IEC (Dr Ntsike) refused to comply with the directives of the commissioners of the IEC, the commissioners resolved to suspend the director. While the director refused to vacate the office due to suspension, the commissioners sought the assistance of the police ministry and the police removed the director from office and is currently on suspension.
"Secondly, we continue to communicate with the 2nd respondent (the Minister of Law) as our line minister on several issues of governance, including the issue of our contracts with the 1st respondent. On 8 January 2019 and by the letter of the same date, we advised the Council of State that we had indicated our desire to continue in office as members and commissioners of the IEC and that we continue from that date to occupy the aforesaid offices.
He argued that their contracts had been renewed by operation of law based on the conduct of all the parties involved.
"Assuming without conceding that we are not in law, members and therefore commissioners of the IEC owing to any defect in law regarding our positions and status in the respective offices of members of the IEC, I aver that we continue to be members and commissioners of the IEC in fact.
"We are reputed to be members and commissioners of the IEC in Lesotho, and none of the members of the public including ministries of the 1st respondent was unaware of our respective fixed term contracts terminating on 7th January 2019 hence the continued treatment of us thereby as members and commissioners of IEC."
Justice Lehohla said they have openly continued to hold office and perform their duties despite the expiry of their contracts on 7 January 2019.
"Consequently, we are not usurpers and imposters in the office of the members of the IEC. There is yet no forum or legal proceedings taken against us which culminated in the view that we continue to hold the office of the members and commissioners of the IEC wrongfully and unlawfully, nor ousted us from such respective office," he said.
The issue of the renewal of the commissioners' contract has been a hot potato ever since their contracts expired in January and the Government Secretary, Moahloli Mphaka, informed them that the government had decided against renewing their contracts.
"As you may be aware there is no right in law to be reappointed to serve as a second term as a member of the IEC. Renewal as expressed by Section 66(7) of the Constitution is discretionary. It is noted that in your letter you expressed your desire to continue serving for another term. However, I am directed to inform you that the government has decided not to accept your request for reappointment as a commissioner of the IEC for a further five-year period.
"The outstanding matters relating to your benefits and privileges are now receiving the attention that they deserve. I wish to take this opportunity to wish you all the best in your future endeavors," Mr Mphaka stated in the three separate letters to each of the commissioners.
Despite Mr Mphaka's letter, the three commissioners have been defiant and have remained in office. The government has not moved to evict them.
Law, Constitutional Affairs and Human Rights Principal Secretary Tanki Mothae recently told the Lesotho Times that the three commissioners were in office illegally since the expiry of their contracts. Mr Mothae declared that every decision the commissioners had taken, since the expiry of their contracts, was illegal, null and void.
Dr Nyaphisi recently criticised the government's decision to stall on renewing their contracts saying it was motivated by a desire to "remotely control the IEC".
"It shows that a government or politicians want to derail the democratic principles and foundations of institutions. They want to control them. I believe that they are heading in that direction and it's unfortunate. It should not happen because it is not good to influence institutions that are supposed to be independent and help you in entrenching democracy.
"We have seen these controlling tactics with the judiciary and it shows that there are hidden agendas somewhere that we don't know about.
"Governments like to control institutions that run the elections. They like to do it and it is not only in Lesotho but all over the world. But we had gone a long way in Lesotho in trying to give the electoral commission true independence but we are still not independent," Dr Nyaphisi said in a recent interview with the Lesotho Times.
The battle for control of the IEC is seen spelling disaster for the country should current persistent calls, mainly by opposition parties, for the nation to prepare for fresh snap polls come true. The calls are a result of the current internecine factional wars in the ABC, the main governing coalition party, which threaten to collapse the government. An ABC faction loyal to Professor Nqosa Mahao is said to have plotted the overthrow of Dr Thabane in Parliament. Its alleged plot is cited as the main reason Parliament was suspended. Should it happen that the severe internal fissures in the ABC are not resolved sooner and elections become inevitable, before the conclusion of the current court processes, it is unclear how any polls can ever be conducted as they cannot be run by an IEC the government no longer recognizes and deems illegal. On the other hand, the government would still be hamstrung in appointing any new commissioners before the court processes, which normally drag, are concluded. In addition to national general elections, the IEC must also oversee any intervening by elections and local government polls. It thus appears the entire electoral management system is already in limbo.