16 May 2019

Lesotho: High Court Nullifies Mahao Election

ACTING Chief Justice 'Maseforo Mahase has nullified the All Basotho Convention (ABC)'s February 2019 elective conference in a judgment issued yesterday.

The judgment effectively nullifies the election of Professor Nqosa Mahao as deputy leader of the All Basotho Convention (ABC) as well as that of the party's new national executive committee (NEC).

Justice Mahase delivered the default judgement in an ex parte (one sided) application filed in the High Court this week by Advocate Thulo Hoeane on behalf of his clients, Motseki Lefera, 'Matumisang Ntiisa and Martha Makhohlisa.

The old ABC's NEC and the ABC, who were cited as the first and second respondents respectively, did not oppose the trio's application, leaving Justice Mahase to issue a default judgement which is certain to escalate tensions in the fractious ruling party and possibly cause its split.

It was a court application and verdict which caught the Mahao faction by surprise. Yesterday, the spokesperson of the pro-Mahao faction, Montoeli Masoetsa, dismissed the default judgement by Justice Mahase and vowed to pursue a political solution to ensure they were allowed to assume office.

All party posts except that of Dr Thabane were up for grabs at the 1-2 February 2019 conference. The biggest winner was the outgoing National University of Lesotho (NUL) Vice Chancellor Prof Mahao who was elected deputy leader. He clinched the coveted post ahead of Finance Minister Moeketsi Majoro, Public Works and Transport Minister Prince Maliehe and former party chairperson, Motlohi Maliehe. As deputy leader, Prof Mahao became the frontrunner to succeed Dr Thabane in both party and government when the veteran leader eventually calls it a day.

Others who were elected into the new NEC are Dr Thabane's son-in-law, Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Chalane Phori (deputy chairperson), Nkaku Kabi (deputy secretary general), Tlali Mohapi (treasurer), Likhapha Masupha (secretary), Montoeli Masoetsa (spokesperson) and 'Matebatso Doti (deputy spokesperson).

However, Prof Mahao and his colleagues have not been able to assume power due to fierce resistance from the old NEC as well as the 11 February 2019 court challenge by three ABC legislators, Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe). The old NEC, which is said to enjoy Dr Thabane's backing, has declared it is only prepared to compromise and allow the new NEC into office if Prof Mahao steps down as deputy leader. It says that Prof Mahao, who joined the ABC in 2015, is a "relative newcomer" who should not be allowed to succeed Dr Thabane ahead of more seasoned ABC politicians who formed the party almost 13 years ago in 2006.

While all eyes had been on the much delayed court application filed before Justice Mahase in February by Messrs Lehana, Sello and Mohapinyane, the struggle for control of the ABC could have been decided by the case that was quietly filed by the unheralded trio of Lefera, Ntiisa and Makhohlisa and decided upon by Justice Mahase this week.

Unlike Messrs Lehana, Sello and Mohapinyane who argued that the February 2019 elective conference results should be nullified on the grounds that its outcome was marred by "vote rigging", the trio of Lefera, Ntiisa and Makhohlisa argued that the entire elective conference should not have been held at all because the ABC constitution does not provide for it. They asked the court to nullify the new NEC's election and allow the old NEC to remain in charge on an interim basis while superintending over processes that should culminate in the amendments to the ABC constitution to provide for NEC elections.

Justice Mahase said in her brief judgment yesterday that "having heard Adv Hoeane for the petitioners... it is hereby ordered that the proceedings of the ABC held on the 1st and 2nd days of February 2019 be declared null and void".

"It is also ordered that the respondents should continue to execute the functions of the national executive committee in line with the constitution of the ABC for a period not exceeding 12 months from the 8th of May 2019 as an interim NEC.

"The interim NEC should make all the necessary preparations with the relevant structures of the ABC to effect the requisite amendments to the constitution of the ABC to make provision for the election of all members of the NEC which are not currently provided for in the constitution of the ABC."

In a subsequent interview with the Lesotho Times yesterday, Adv Hoeane said his clients were justified in seeking the nullification of the February 2019 elective conference on the grounds that it was not provided for in the ABC constitution.

"The first petitioner (Lefera) was a voting delegate at the February conference from the Mechachane constituency while the other two petitioners were voting delegates from the Mabote constituency. We had to serve the papers on the old NEC because there is an interim order that they should continue in office until the dispute over the elective conference (that was filed by Messrs Lehana, Sello and Mohapinyane) is sorted out by the court.

"I served them (old NEC) with the court papers on Monday and this morning (yesterday) I appeared before Justice Mahase and moved the application. There was no objection from the old NEC who had been served with the papers so this is a default judgement.

"The petitioners are saying those February elections should be declared null and void because they are not provided for in the ABC constitution."

When it was pointed out to him that the ABC has previously held NEC elections including those that ushered in the old NEC, which has now been asked to remain in office, Adv Hoeane said the elections were only held "as a convention" in the party but without any legal basis.

"Strictly speaking there is no clause that provides for NEC elections. So after declaring them null and void, Justice Mahase's order comes up with a roadmap that the old NEC should continue to execute the functions of the NEC for 12 months from 8 May 2019. During this period the interim NEC should make all the necessary preparations to effect the necessary amendments to the constitution of the ABC to provide for the election of all members of the NEC which are not currently provided for in the constitution of the ABC," Adv Hoeane said.

He said as a result of yesterday's order by Justice Mahase, the other application by Messrs Lehana, Sello and Mohapinyane should fall away.

"Everything falls away because the February elections have been declared null and void. The Lehana, Sello and Mohapinyane application is now just of academic interest. Most probably when they come before her, she will show them this order which she granted this morning (yesterday)."

Justice Mahase's latest judgment is likely to earn her more flak from critics who accuse her of having jettisoned her constitutional role to dispense impartial justice in favour of furthering the interests of a faction of a political party. She rushed to pass the judgment before finalising a similar case by Messrs Lehana, Sello and Mohapinyane who are also challenging the outcome of the February elective conference.

Legal analysts interviewed yesterday said in situations where different cases dealing with similar facts are filed before a court, the normal practice is for the cases to be merged or heard in sequential order. In this case, judge Mahase was already dealing with the original case filed by the Lehana group yet she rushed to conclude a case filed much latter but still based on similar facts.

It was Justice Mahase who originally prohibited Prof Mahao from contesting the post of ABC deputy leader post before her judgment was overturned by the Court of Appeal. Prof Mahao then contested the ABC elections and won after the eleventh hour Court of Appeal reprieve.

Sittings of the Court of Appeal have since been suspended ostensibly because of lack of money to fund its operations. The Mahao camp however, believes the suspension of the Court of Appeal is a politically motivated decision to cripple justice delivery after the court ruled in favour of Prof Mahao.

Yesterday, the spokesperson of the pro-Mahao faction, Montoeli Masoetsa, dismissed the default judgement by Justice Mahase saying his camp would pursue a political solution to ensure they were allowed to assume office.

"We are going to take a political approach to solve this matter and very soon it will be dog eat dog. Just watch this space," Mr Masoetsa said.

After passing judgment nullifying the February 2019 ABC elective conference, Justice Mahase proceeded to hear the similar case filed by Messrs Lehana, Sello and Mohapinyane.

She then postponed the case to 14 June after saying she was not physically fit to preside over it.

When postponing the Lehana case to 14 June, she made no reference to her earlier judgment nullifying the outcome of the ABC's February elective conference.

Disgruntled ABC supporters demonstrated against Justice Mahase on Friday over the delay in finalising the case which was brought before her in February by Messrs Lehana, Sello and Mohapinyane.

But the judge hit back at the protesters while delivering her postponement ruling on the case filed by the Messrs Lehana and others.

She said the protestors who coalesced under the banner of the Voice of the Voiceless Association (VOVA), had insulted her and the entire judiciary and she would soon seek advice on what course of action to take against them.

She then postponed the Lehana, Sello and Mohapinyane application to 14 June because she was "not physically fit to hear the case". (See separate story on page 4).

Meanwhile, the lawyers for the applicants and respondents in the Lehana, Sello and Mohapinyane case said they were shocked by Justice Mahase's order which nullified the outcome of the February elections.

They said the decision was likely to render their own case irrelevant because the same judge had already declared the ABC elections results null and void.

"We only learned of the other case and its judgement through social media just before coming to court this afternoon. Before that, we did not know that there was another court challenge to the outcome of the February elections," said Advocate Khotso Nthontho who is one of the lawyers for the respondents.

One of the applicants' lawyers, Adv Rapapa Sepiriti said that the two applications should have been merged because they were filed against a similar issue of the February elections.

"Although the two cases were filed at different times, they should have been consolidated and be deliberated on as one case. But then again, it has to be at the discretion of the judge.

"The case seems to have been filed later than ours but I cannot say why the judge found it fit to address it and rule over it before ours. The judgement renders our case academic but I will have to first study its papers because I only learned about it when I was about to enter the court for our own case. I must also consult with my clients who will advise on the way forward," Adv Sepiriti said.

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