Blow for former IEC commissioners

Blow for former IEC commissioners

MASERU – THREE former Commissioners of the Independent Electoral Commission (IEC) have lost a Constitutional case in which they sought to block the appointment of new officers at the electoral body.
Former Chief Justice Mahapela Lehohla, Advocate ’Mamosebi Pholo and Dr Makase Nyaphisi were seeking an order interdicting the Council of State from appointing new commissioners after their terms expired.

The three, together with an IEC employee Lebohang Bulane, whom they had appointed as the director of elections before they were kicked out, sought to be joined as parties in a case in which they were challenging the process to recruit new commissioners.

A candidate for the post of commissioner, Reverend Maieane Khaketla, a rights group Transformation Resource Centre (TRC) and a political party Areka ea Basotho, are seeking to stop the recruitment process.
They obtained an interim order to interdict the process before Justice Tšeliso Monaphathi in the High Court.

The commissioners wanted to remain commissioners with full benefits until new appointments were made.
They also told the court that they should be paid all their salary arrears and other benefits until the Council of State appoints new commissioners despite the fact that their terms had expired.
They also said Bulane was validly appointed as the Acting Director of Elections and that he should be recognised as such.

Deposing to an affidavit Justice Lehohla said they had a legitimate expectation that they would be reappointed because they are suitable to hold office or remain in office until their appointments are validly terminated.
Their term expired in January this year.

Justice Lehohla argued that it was wrong that they were removed by the Council of State, saying it was “unlawful and ultra vires because only the King can appoint and remove a member of the IEC”.
A coram made up of Justices Lebohang Molete, ’Maseforo Mahase and Keketso Moahloli ruled that the constitutional crisis they alleged “is not necessarily to be avoided by extending their tenure”.
The court said: “The right of a private person, or association of persons, is limited to prosecuting actions in his or its own interest and he or it has no title to institute them in the name of the public”.

The court said in bringing this application they may be engaging in actio popularis – an action in Roman penal law brought by a member of the public in the interest of public order.
The court said they should have approached the High Court instead of the Constitutional Court.
“There is abundant authority to the effect that the Constitutional Court should not be approached where ordinary courts have jurisdiction,” the court said.

It also said if their term expired in January 2019, and if there is any constitutional crisis, “it will not be resolved by this court extending the term of three individuals, because it came to an end”.
“The delay in appointing substitute commissioners is not their problem and does not authorise them to litigate as the Independent Electoral Commission in this case.”
The judges said a fixed term contract or appointment comes to an end upon expiry of that period.
“The fact that (they) stayed in office beyond their stipulated five-year period does not make it legal.”

Staff Reporter


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