Lesotho: Mapesela Goes to Court to Demand Secret Ballot

21 September 2021

Prime Minister Moeketsi Majoro is using national security agencies to "intimidate" his All Basotho Convention (ABC) party legislators who are supporting the no confidence motion against him in parliament.

Mokhotlong legislator, Tefo Mapesela, makes this accusation in a Constitutional Court application he has filed for an order compelling National Assembly Speaker, Sephiri Motanyane, to allow members of parliament to vote secretly in a proposed motion to oust Dr Majoro.

He also accuses Dr Majoro of failing to lead the government saying under his leadership, it had failed in its accountability obligations and made decisions that violate the Constitution. It must thus be forced out in a no confidence motion.

Mr Mapesela filed the no confidence motion on 25 August 2021. It was seconded by Alliance of Democrats (AD) MP, Kose Makoa. Mr Mapesela had followed it up with another motion for a secret ballot last week.

Mr Motanyane told parliamentarians on Friday upon their return from the winter recess that he had approved the no confidence motion against Dr Majoro. He however, said voting on the motion would not be through secret ballot as proposed by Mr Mapesela in the interests of "transparency" and "openness"

Dissatisfied with Mr Motanyane's Friday decision, Messrs Mapesela and Makoa petitioned the Constitutional Court on Tuesday for an order to allow MPs to vote secretly, arguing that it is their constitutional right to do so.

Mr Motanyane, the Clerk of the National Assembly Adv Fine Maema, the Business Committee of the National Assembly, the National Assembly, Attorney General Rapelang Motsieloa, Members of Parliament and Political Parties (in parliament) are cited as first to seventh respondents respectively.

Messrs Mapesela and Makoa argue that the no confidence motion should be determined via a secret ballot to allow parliamentarians to freely vote without fear of repercussions.

"I (Mapesela) and the second applicant (Makoa) as well as other members of the House require a secret ballot to vote on the motion of no confidence for fear of reprisals and retributions, and we would not be afforded substantial relief in due course at the hearing should the motion be debated and determined without the intervention of the court," Mr Mapesela states in his founding affidavit.

"Without a free exercise of voting by members of the House, the capacity of the House to play its oversight role is seriously undermined and whittled down, leading to a threat to constitutionalism. Such a vote by members of the House is ordinarily open/public except in special circumstances where it is required to be by secret ballot."

He says Lesotho's National Assembly subscribes to principles, practices and procedures of members of parliament in the Southern African Development Community (SADC), the Commonwealth Parliamentary Association (CPA) and Inter-Parliamentary Union (IPU) "a substantial majority of which recognise and use secret ballot in motions of no confidence in special circumstances".

The infighting within the ABC is forcing some members to pretend to support Dr Majoro whereas in essence they want him gone, he claims. Other parties' leaders have strictly ordered their MPs not to support the motion, therefore interfering with their oversight role over the executive. Such MPs can only effectively discharge their oversight role over the executive if they are allowed to vote in a secret ballot.

Mr Mapesela says there is clear apprehension among some ABC MPs, including Dr Majoro himself, that their power could be snatched through the no confidence motion.

"As a consequence, they are jointly resorting to intimidatory tactics and wrongful use of state enforcement and security machinery against members of the House supporting the motion. ABC legislators, for this reason, are pretending to be supporting the prime minister, while out of sight, they are desperate to have him removed from the helm of government and only a secret ballot could render their vote secret and therefore, protect their identity.

"Members of the House, 16 of whom are ABC members who have confirmed support of the motion of no confidence, are now fearful to openly support the motion as their respective parties (ABC, Basotho Action Party, Movement for Economic Change, Basotho National Party, Popular Front for Democracy and Democratic Congress) have made it clear that none of their members should support such motions. We have been informed by these members of the House who belong to these several parties that specific instructions have been issued to them not to support the motion of no confidence and some of these parties have gone public on the matter."

Since filing the motion, Mr Mapesela claimed he had also been told by members of the security forces that an instruction had been issued "to harm or kill me for filing the motion". He believed the reports because since filing the motion, he realised he was being trailed by vehicles on his way home. The vehicles would park next to his gate for long periods, Mr Mapesela claimed.

Apart from the threats directed towards him, Mr Mapesela also claimed other parliamentarians who wish to dethrone Dr Majoro were being targeted. Therefore, the voting process may not be free and fair if done openly.

The threats taint the voting process and its outcome while also whittling down parliament's capacity to hold the government to account, he adds.

"I aver that the secret ballot in the circumstances is necessary and the best voting mechanism to enhance the oversight role and capacity of the House and to hold the government accountable," Mr Mapesela states.

Mr Mapesela lists a number of transgressions for which he wants Dr Majoro punished by being ousted in a no confidence motion. He accuses Dr Majoro of sending military personnel in "deadly harm's way" in the troubled Mozambique without involving, informing and reporting to parliament and senate. He accuses Dr Majoro of "soft, kids'-glove treatment and approach to criminality". That can be attested to by the high rate of killings of citizens and the ever-escalating crime rates.

He says Dr Majoro has failed to reign in ministers and hold them accountable.

"Rather than decisively dealing with the minister who arrogated to himself the power and entered into a M1, 7 billion solar energy deal that resulted in Lesotho's assets abroad being frozen in execution of the foreign judgment worth more than M850 million, the prime minister instead establishes a worthless ineffective commission of enquiry which has not even started to function today.

"The government has dismally failed to manage the Covid-19 pandemic with deleterious consequences on the economy, the business and the lives of the poor masses of the people of Lesotho, when the funds allocated to alleviate the impact of the pandemic are siphoned and mismanaged, to make it worse, mandatory Covid-19 protocols which should apply to both public officers and private individuals are selectively applied and enforced, and immunise state officials from responsibility thereunder."

The Constitutional Court will today be asked to grant an interim interdict stopping Speaker Motanyane from setting a date for voting on the no confidence motion pending the finalisation of the matter in terms of which Mr Mapesela wants a final order that voting be done by secret ballot.

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