Legal opinion could scuttle commissioners’ bid for new term

Legal opinion could scuttle commissioners’ bid for new term

MASERU – A legal opinion by the Attorney General (AG)’s office could scuttle the IEC commissioners’ bid for a second five-year term.
Retired Justice Mahapela Lehohla, Advocate ‘Mamosebi Pholo and Dr Makase Nyaphisi are aggressively pushing for reappointment as commissioners.

They remain in office two months after their contracts expired.
To justify their stay they argue that the Council of State has promised that their contracts are being processed.
The view among the commissioners is that they have a legitimate expectation to remain in office because the employer did not respond to their request for renewal.

They make this clear in their January 8 letter to the Council of State’s secretary, Monehela Posholi, in which they point out the employer’s silence since September last year.

“Our understanding is that by operation of law, where the appointing Authority has power to or not to extend the contract, but remain silent, when so advised: inference favours that in effect renewal of our contracts is implied and definitely not impeded,” the commissioners said.
“Based on this legal principle, it is worth noting that we are still in office.”

The AG’s office however does not believe that the issue is as clear-cut as the commissioners want to make it look. The legal opinion starts by chipping away at the commissioners’ claim that the appointing authority is the Council of State.
The commissioners argue that they told the government secretary, AG, Minister of Constitutional Affairs, the Prime Minister and political party leaders that the government secretary should have “forwarded our request to relevant appointing authority for consideration (The Council of State) and not to the government.

This, according to the AG’s office, is not the correct position.
The AG’s office says the appointing authority of the commissioners is the King acting on the advice of the Council of State.
“It is not correct to say that the appointing authority is the Council of State as is imputed in the correspondence from the SPS (senior private secretary to the King) and in the letter of the 8th (January) instant from the Commissioner.”

The AG’s office said the correct interpretation is that “the King appointed the Commissioners on the advice of the Council of State on behalf of His Government as the employer was the Lesotho government.”
In June last year the commissioners wrote to the government secretary requesting that they be appointed for another five-year term. They based their appeal on a section of their contracts which says six months prior to the completion of the first term a commissioner will inform the government whether or not they want to serve another term.
In August the government secretary told the commissioners that they would not be offered another term.
“I am directed to inform you that government has decided not to accept your request for reappointment as a commissioner of the Independent Electoral Commission for a further 5-year period,” said the government secretary in one of the three identical letters to the commissioners.

In their letter to Posholi the commissioners said they were dismayed by the government secretary’s response.
It would seem the commissioners then started lobbying political parties to push for their cause.
They say they met with the government and political party leaders in November or December.

They tell Posholi that government officials informed them that the government secretary was later instructed to withdraw his letter. They don’t say who instructed the government secretary.
The AG’s office says it was unable to verify that claim.

The office however argues that the power to reappoint the commissioners is not solely vested with the State Council. It says the mandatory procedure stipulated in the constitution is that in advising the King on who can be appointed a commissioner, the Council of State has to select names from the list of names submitted by political parties.

“The Council of State acts in concert with political parties unless the latter fail to submit names within the stated period,” the AG’s office says.
“When it comes to whether or not to reappoint Commissioners, political parties should also be involved”.
“The appointing authority (the King) cannot make reappointments without involving political parties, which had selected people for reappointment. The crucial question, the office says, is on the government’s position and political parties’ attitude on the commissioners’ request for reappointment.

“It is the government that can interact with political parties and then communicate, through the Government Secretary the attitude of political parties on reappointment.” The position of the political parties, however, has to be brought to the attention of the Council of State which in turn will advise the King.

Staff Reporter

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