The government and the Independent Electoral Commission (IEC) have accused the Transformation Resource Centre (TRC) of seeking to generate a constitutional crisis by filing a "malicious" application seeking the de-registration of all political parties.
The TRC last month petitioned the High Court to deregister all of Lesotho's 41 political parties for allegedly breaking laws governing their operations. The civic organisation sought the deregistration the parties for mainly flouting the National Assembly Electoral Act of 2011.
If the TRC wins its case, it means even the lead parties in the current coalition government; the All Basotho Convention (ABC) and the Democratic Congress (DC), will be deregistered leaving the country with no government.
The TRC has already won an interim order for the IEC to produce the compliance records of all the registered political parties. The interim order will expose the state of affairs of these parties while the High Court hears arguments for a final order to bar them from operating.
The government and the IEC this week filed their court papers opposing the TRC application.
Law and Justice Minister, Lekhetho Rakuoane, blasted the TRC and its co-applicant, the Democratic Party of Lesotho (DPL), for driving a malicious agenda.
Advocate Rakuoane filed his opposing affidavit on behalf of the government, which is cited as the 44th respondent in the TRC application. He leads the Popular Front for Democracy (PFD) which is a member of the current coalition government of which the ABC and DC are the lead parties.
"It is not the function of the applicants to see to it that political parties comply with the law as they suggest," Adv Rakuoane argues.
"I submit that both the applicants are not suited to bring this application because they come to court with dirty hands. Both of them are non-compliant with the law, in particular, they have not complied with Rule 9 of the Societies Rules.
"The application is not bona fide (genuine) because the applicants want to have certain associations cancelled while others remain in the registry records. There is no basis why applicants intended to be selective unless driven by an improper motive. Should this court grant any prayer against any party, that would in effect be discriminatory because not all other parties are in the same boat as the respondents would be affected thereby."
Adv Rakuoane further argues that the move to have the ruling parties de-registered could spark a constitutional crisis.
Should the TRC succeed in its application, the governing parties will no longer be lawful parties, meaning there will be no legitimate government in the country.
"Assuming political parties are not compliant with the law and as a result, the IEC decides to cancel and the Registrar General of Societies as well decides to deregister them, the consequences are immeasurable. Once the political parties are cancelled, as it seems to be the applicants' goal, the consequences will be a constitutional crisis. It constitutes a constitutional crisis because the country's (legal) regime does not have a solution to this problem should it happen.
"I submit that it will not be in the public interest to reach that far. Obviously, should the court issue an order directing both the IEC and the Registrar General of Societies to cancel non-compliant parties, there will be turmoil and commotion within the public on legitimacy of the both the National Assembly and cabinet. The general elections are around the corner and all political parties whether compliant or not, have been conventionally elected to the National Assembly. As a result, it would be imprudent to take the route that is likely to bring turmoil within the public."
Although the TRC is not a political party, it argues that it has a legitimate interest and locus standi (legal capacity) to sue the political parties over their non-compliance. It says just like the political parties and other organisations, the TRC is a voluntary organisation registered under the Societies Act.
The TRC contends that the ABC, DC and other political parties are not fully complaint with the laws especially with regards to accounting for funding they received from treasury including for the 2017 elections.
The Law and Justice minister counter-argues that the country does not have subordinate laws to the National Assembly Electoral Act which may give the IEC a clear direction on how to deal with non-complying parties.
"The National Assembly Electoral Act 2011 does not prescribe an instrument that shows compliance on paid-up membership. All political parties registered post 2011 have been irregularly registered because the law requires payment of a prescribed fee, but the fee was not prescribed by any law. What it means is that there is a lacuna (gap) in the Act... It uses the words 'prescribed manner' but nowhere is such a manner prescribed.
"The applicants have identified pertinent areas in the National Assembly Electoral Act 2011; sections 70 and 71 providing that political parties be funded from the consolidated fund, section 72 which requires political parties to account to the IEC for funds so allocated, section 72(5)(c) requiring parties to furnish the IEC with financial statements and reports in a prescribed manner within a period of six months after the declaration of the results of elections and section 72(5)(d) requiring political parties to furnish the IEC with financial statements and reports within three months after the end of the financial year.
"Section 25 provides for the registration of a political party. Section 25(1)(b) requires the registration to be in a prescribed manner and format. In my view, this provision needs to have a regulation to regulate the manner and provide for the form necessary. Section 25(c)(ii) requires political parties to pay a certain fee upon registration. Further, section 25(1)(c)(iii) requires a declaration to be made in the prescribed form. There is a need to make regulations to have it complied with.
"The above referred to sections and others would need to be supplemented with regulations. There is need to make regulations to ease the work of the IEC and political parties. I invite this court to have a close look at all sections in the Act and it will readily realise that almost all sections need implementing legislation.
"To achieve this, firstly the IEC must be given an opportunity of about two to three months to promulgate the regulations which will meaningfully direct political parties on how they should conduct their affairs in order to bring them in line with the decree of the law," Adv Rakuoane argues.
The IEC's Acting Director of Elections, Lehlohonolo Suping, echoes similar sentiments. He says the IEC needs to have regulations to properly guide both the commission and political parties in complying with the National Assembly Electoral Act 2011.
"I verily aver that as far as the process to deregister political parties is concerned, the IEC's considered view on the matter has been guided by the conflict ridden history of Lesotho's politics; a history that informed the opening of the political space to make it more inclusive with the adoption of the mixed member proportional electoral model. The IEC has accordingly considered that persuading the political parties to comply with their obligations under the Electoral Act to be far more beneficial and important that enforcing deregistration of political parties.
"I aver further that the absence of subordinate legislation concerning the implementation of the provisions of the Act, has not made the implementation of the provisions of the Act any easier; for instance, what date in a calendar year will a political party be considered to be in default?" Mr Suping asks.
The TRC's executive director, Tsikoane Peshoane, argues in the TRC application that his organisation had been engaging the IEC with a view to establish the compliance of parties with the law but to no avail. But the TRC had, using its own devices, established that the parties were offenders of the law in several respects.
However, Mr Suping counter-argues that the IEC allows the general public to inspect the electoral body's documents and rejects that the TRC was ever denied such an opportunity by the IEC.
"Section 29(2) of the National Assembly Electoral Act provides that 'the public may inspect the constitution and documents contemplated in the Act during working hours at the office of the IEC without charge'.
"The applicants do not allege anywhere in the affidavits that they approached the first respondent to enforce their right of access to the information kept by the IEC in terms of section 25(1)(c) and that their request was denied. Again, the applicants fail to state with any particularity any specific exercise of discretion by the IEC in respect of any political party and the grounds on which that exercise of discretion is said to be invalid by the applicants," Mr Suping states.