In what could be the first in the history of Lesotho, three activists have petitioned the Council of State, the body that assists His Majesty King Letsie III in the discharge of his functions.
Kananelo Boloetse, Motsamai Mokotjo, and Resetselemang Jane want the council of state to advise the King to appoint a tribunal to investigate the Independent Electoral Commission (IEC)’s three commissioners’ fitness to hold office.
The leaders of the Basotho National Party (BNP) and Basotho Patriotic Party (BPP), Machesetsa Mofomobe and Tefo Mapesela, respectively, have agreed with the activists.
The three commissioners are chairperson Mphasa Mokhochane, and commissioners Tŝoeu Petlane and Dr Karabo Mokobocho.
They were appointed in December 2020 by the King acting in accordance with the advice of the council of state.
With less than three years in office, Boloetse, Mokotjo, and Jane said the commissioners were incompetent and should be sent packing.
The trio was triggered, among others, by IEC’s admission in October last year that it announced incorrectly calculated results for four Proportional Representation (PR) seats following the National Assembly elections which were held on October 7.
As a result of the IEC error, three candidates of the Democratic Congress (DC), Morapeli Motoboli, Maletsema Letsoepa, and Katleho Mosotho as well as Lebohang Mochaba of the Alliance for Democrats (AD) were sworn in as Members of the National Assembly.
These four seats were supposed to be allocated to BNP, BPP, United for Change (UFC), and the Lesotho People’s Congress (LPC).
To rectify the mistake, IEC on October 22, 2022, 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 in so far as that allocation gave AD and DC three and 11 PR seats respectively.
IEC 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.
But Boloetse, Mokotjo, and Jane said the IEC’s integrity was already blemished when IEC approached the court and the stain will not go away despite the court’s eventual judgment.
“Perhaps we should state that IEC is one of the state institutions that have enjoyed a long spell of favourable press and unquestioned credibility since it was established,” the trio said in the letter.
“However, in its final report, the European Union Election Observation Mission (EU EOM) stated that IEC’s credibility was affected by announcing incorrectly calculated results for four PR seats,” the trio added.
They said IEC’s admission that it made a mistake and the filling of an application in the high court were not enough.
“Months later, no one has been held accountable for that embarrassing mistake and this lack of accountability is undermining the legitimacy of the rule of law. We cannot create a culture of accountability if people do not see accountability for those who have made mistakes. Those who make mistakes should at all times prove that they can change and be worthy of trust again,” Boloetse, Mokotjo, and Jane said.
They added: “The consequences of failing to create a culture of accountability are pervasive but we will not list them here but want to emphasize that the biggest casualties of announcing incorrectly calculated results for four PR seats are the taxpayers who are robbed of thousands of Maloti every month.”
They then illustrated how taxpayers are, as they claim, robbed of thousands of maloti each due to a mistake done by the IEC.
They said a member of the National Assembly earns about M474,348.00 per annum or about M39,529 per month.
MPs, they added, are also entitled to a tax-free housing allowance of M3,000 per month, a tax-free petrol allowance of M5,000 per month, a tax-free utilities allowance of M2,000 per month, and a tax-free expense allowance of M1,000 per month, among others.
“These add up to about M50,529 per month. The taxpayers are forking out over M200,000 each month to pay the salaries and benefits of four people who were not supposed to be in the National Assembly in the first place.
“It is against this background that we humbly request that the Council of State represents to His Majesty King III that the question of removing the three Commissioners of IEC has to be investigated.”
The constitution states that the chairman or any other member of the electoral commission may be removed from office only for inability to exercise the functions of the office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the constitution.
It further states that the commissioners can only be removed from office by the King if the question of their removal from office has been referred to a tribunal and such tribunal has recommended to the King that the commissioners ought to be removed from office for the inability or the misbehavior.
It reads: “If the Council of State represents to the King that the question of removing a member of the Commission under this section ought to be investigated, then:
“a. the King shall appoint a tribunal consisting of a Chairman and not less than two other members, selected by the Chief Justice from among persons who hold or have held high judicial office; and
“b. the tribunal shall enquire into the matter and report on the facts thereof to the King and recommend to him what action is to be taken in relation to the Chairman or any other member.”
Boloetse, Mokotjo, and Jane want the tribunal to investigate the circumstances surrounding the delimitation of constituency borders in 2022.
“The constitutional court ruling compelled IEC to correct twenty out of eighty constituencies that fell short of the 10 percent delimitation quota. Basotho deserve to know what went wrong that led to IEC getting the delimitation wrong,” they said.
They also want the tribunal to investigate the challenges posed by the late change in the constituency delimitation of 20 constituencies to registered voters whose constituency and polling stations changed.
The tribunal should also investigate circumstances surrounding the suspension and sending on terminal leave of the Manager of Electoral Operations less than six months before national assembly elections and find if this had catastrophic outcomes as reported by a local weekly, Public Eye.
“Whether there were any irregularities, undue enrichment, corruption, and undue influence in the awarding of the contract for the printing of Ballot Papers for the National Assembly elections.
Investigate the circumstances surrounding the announcement of incorrectly calculated results of PR seats. Whether any employees of IEC were appointed without proper procedures,” they said in their letter.
These Terms of Reference may be added to, varied, or amended from time to time. We hope that the Council of State will consider our petition and advise His Majesty accordingly,” they added.
Mofomobe told Newsday this week that he agrees with the trio that the commissioners should appear before a tribunal and demonstrate whether they are still fit to hold office.
“One of the principles of democracy is the frequent test of fitness to hold office. The Prime Minister is tested in parliament through a motion of no confidence,” he said.
“So why shouldn’t the IEC Commissioners who are entrusted with running the elections be tested? IEC made blunders that almost pushed this country to the edge. They have to be tested whether they are fit to hold office,” he added.
Mapesela, on the other hand, indicated that he was only interested in the parliamentary seat that his party was deprived of by IEC.
“I am interested in getting my seat that was wrongly allocated to another undeserving party,” he said.
“IEC realized after almost two weeks that they have made an error. The fact that the people entrusted to run the elections only became aware of the error after two weeks raises red flags.
“Yes, they have to be tested because it looks like they do not know their work. I want my seat back,” he added.
He further indicated that: “I am going to demand my salary and benefits from when the business of parliament started. Our salaries are being paid to illegitimate legislators.”
The leader of UFC, ‘Malichaba Lekhooaba, had a different view.
According to Lekhooaba, the commissioners might not be incompetent given the circumstances they found when they entered office.
IEC was broke, its systems were a mess and they had to raise against time to prepare for general elections, she said.
“My opinion in the matter is that they found the commission in a bad state. They came into office when we were preparing to hold the elections and there was little time to make thorough preparations.
“So, we cannot hold them accountable for the mistakes that happened because the commission did not have money and most of the mistakes that arose before, during, and after elections happened because there was no money,” she added.
“I believe they are competent for the job but it is just that they were put into a messed-up system of IEC and that is why the mistakes happened. Coming into office while you have limited time for preparations with no resources can be frustrating,” she also said.