The High Court sitting in its constitutional capacity yesterday struck off its roll an application by the Independent Electoral Commission (IEC) seeking to amend the allocation of Proportional Representation (PR) seats.
On October 22 this year, IEC filed an urgent application in the High Court in its constitutional jurisdiction.
It wanted the court to review, correct and set aside as irregular the allocation of PR seats made following the general elections in so far as that allocation gave Alliance of Democrats (AD) and Democratic Congress (DC) three and 11 PR seats respectively.
The elections were held on October 7.
IEC also wanted an order granting it leave to amend the allocation of PR seats allocated to AD from three to two and those allocated to DC from 11 to eight.
The matter was set down to proceed on November 16 for deliberation of the preliminary issue relating to jurisdiction as DC and the Revolution for Prosperity (RFP) had raised it.
Both DC and RFP were respondents. They argued that in its constitutional capacity, the court did not have the authority to decide this case.
“This judgment is therefore on whether the matter should have been instituted constitutionally or under the National Assembly Electoral Act of 2011,” read the high court judgement delivered yesterday.
“This matter should not have been instituted by way of motion proceedings following the Constitutional Litigation Rules. The matter is struck off the roll of this court sitting in its constitutional jurisdiction,” the judgement added.
It was accordingly ordered that the matter should be instituted under the electoral act procedure.
The case was presided over by a panel of three judges, Justices Moneuoa Kopo, ‘Maseforo Mahase and Liepollo Makhetha.
It had been argued for both DC and RFP that the procedure followed by IEC in instituting the matter was ultra vires the provisions of section 69 of the constitution as amended and read with section 125 of the electoral act.
Advocate Motiea Teele (KC), for DC, also argued that should the court find that the procedure to challenge the allocation of PR seats is allowed even under the constitution, it should not be followed as there is a non-constitutional remedy available.
For the IEC, advocate Kabelo Letuka had argued that since IEC was saying it committed an error, it committed that error in exercising its constitutional mandate.
Secondly, Letuka further argued, in correcting that error, the IEC would be changing the membership of the current parliament, which is a constitutional creature.
He said the matter had been properly instituted under the jurisdiction of the High Court sitting in its constitutional capacity.
Another ground upon which the IEC argued that the matter could not be instituted under the procedure as envisaged in the electoral act was that the procedure under the act was meant for disputed returns.
The commission argued that in this matter, there were no election results that were disputed.
The applicants buttressed their point further by arguing that the self-review application was inherently a rule of law application and therefore constitutionally based.
For that reason, they argued, the matter could not be moved under the electoral act.