Basotho National Party Another v Independent Electoral Commission and Another (CIV/APN 245 of 98) [1998] LSCA 94 (16 September 1998)

CIV/APN/245/98 IN T HE L E S O T HO H I GH C O U RT In the matter between: B A S O T HO N A T I O N AL P A R TY L E S E T E LI M A L E F A NE 1ST P E T I T I O N ER 2 ND P E T I T I O N ER and I N D E P E N D E NT E L E C T O R AL C O M M I S S I ON T H A B I SO M E L A TO 1ST R E S P O N D E NT 2 ND R E S P O N D E NT Held at: M A S E RU Coram: W. C. M. M a q u tu J. M . M. Ramodibedi J. S. N. Peete J. J U D G M E NT On the 10th June, 1998, the Basotho National Party (hereinafter called the B N P) and Leseteli Malefane (hereinafter styled M r. Malefane) filed a joint petition in the High Court (sitting as a Court of Disputed Returns). This petition had been brought against the Independent Electoral Commission (hereinafter styled the IEC) and Thabiso Melato (hereinafter called M r. Melato). T he I EC w as being sued as the b o dy that w as responsible for r u n n i ng the General Elections that h ad b e en held on the 23rd M a y, 1 9 9 8. M r. Melato w as joined because he w as the person that h ad b e en elected as the M e m b er of Parliament for Constituency N u m b er 40 of M a a m a. In this joint petition, the B NP a nd M r. Malefane w e re asking for an order:- 1. Declaring the election on 23rd M a y, 1 9 9 8, in the M a a ma Constituency N o . 40 null a nd void a nd of no force an effect; 2. Declaring the return of Second Respondent (Mr. Melato) as duly elected m e m b er of the National A s s e m b ly for M a a ma Constituency null a nd void a nd of no force a nd effect; 3. Declaring the exclusion of petitioners from contesting a nd participating in the M a a ma Constituency N o . 40 as being illegal, unconstitutional, irregular a nd a gross electoral malpractice; 4. Directing first respondent (the I E C) to arrange for a nd conduct fresh elections in the M a a ma Constituency w h i ch will include the petitioners, within such time as m ay be determined by this Honourable Court. 5. Directing first respondent (the I E C) to pay the costs hereof on an attorney a nd client scale a nd second respondent ( M r. Melato) to p ay such costs in the event of opposing s a m e; 6. Granting the petitioners further and/or alternative relief. This j u d g m e nt w as ready for delivery within t wo w e e ks of the date of a r g u m e n t. Unfortunately disturbances m a de it impossible to deliver it. T he complaint of the B NP a nd M r. Malefane is that the B MP w as not given an opportunity to h a ve a candidate in the Parliamentary General Elections that w e re held on the 23rd M a y, 1 9 9 8. T he I EC in denying the B N P: the right to present a candidate acted illegally a nd contrary to the Court Order of the 19th M a y, 1998. T he I EC according to the B NP a nd M r. Malefane acted in a high-handed a nd grossly unreasonable m a n n e r. T he I EC should have postponed the Parliamentary elections for M a a ma Constituency N o . 40 if it h ad problems in including the B NP candidate a m o ng the election candidates. There w as (according to the B NP a nd M r. Malefane) no reason for not postponing the Parliamentary election for that Constituency the IEC h ad d o ne in respect of M o y e ni Constituency w h e re o ne of the party candidates h ad died. T he Petitioners ( B NP a nd M r. Malefane) stated that the I EC refused to accept M r. Malefane as the B NP candidate because the I EC w as misinterpreting the Court Order. T he I EC w as of the view that M r. Malefane and. M r. Tsolo Lelala w ho both claimed the right to stand for the B NP at the M a a ma Constituency h ad been ordered by the Court to stand as independent candidates. T he B NP a nd M r. Malefane w e re of the view that all the B NP h ad to do w as "to pick o ne of the duly n o m i n a t ed candidates". T he B NP settled for M r. Malefane in preference for Tsolo Lelala. T he I EC contested the joint petition of the B NP a nd M r. Malefane. In the v i ew of the I EC the B NP h ad no locus s t a n di to bring this petition as such an application c an only be brought by an elector in t e r ms of Section 69(1) of the Constitution. Secondly other political parties that h ad participated in the election at the M a a ma Constituency w e re not joined. After raising these points in limine the I EC dealt with the merits. T he IEC through its chairman's (Mr. Mansa's) affidavit b e g an with the following opening w o r d s: - "The IEC's constitutional m a n d a te is to conduct the elections strictly in conformity with the law as set out in the National Assembly Order." On the 20th April, 1 9 9 8, w h i ch w as the nomination day five persons h ad b e en n o m i n a t ed a nd endorsed by political parties for the M a a ma Constituency. O ne person h ad b e en n o m i n a t ed as an independent candidate. T he B NP h ad internal disputes a nd could not n o m i n a te a candidate. T he I EC says tills led to a m b i g u o us court orders in the dispute between Tsolo Lelala a nd M r. Malefane in respect of the B NP candidature in M a a ma Constituency because of the internal wrangling. T he first order to be served on the I EC according to its C h a i r m an w as CIV/APN/186/98. It w as served on 20th April, 1 9 9 8, it h ad b e en obtained ex parte. It interdicted the IEC from filing nominations. Its final j u d g m e nt w as on the 6th M a y, 1 9 9 8. T he second order w as CIV/APN/808/98 w h i ch according to the I EC w as issued on the 19th M a y, 1 9 9 8. It created confusion since absent voters h ad b e g un to vote. It w as according to the I EC sheer impossibility to include M r. Malefane a nd Tsolo Lelala as independents. T he order, according to the C h a i r m an of the IEC, said the n a m es of Tsolo Lelala a nd M r. Malefane w e re being forwarded to the I EC as duly n o m i n a t ed candidates for M a a ma Constituency to stand as i n d e p e n d e nt candidates if they so wished. It w as an order obtained by consent a nd no w h e re w as a political party mentioned although the B NP and M r. Malefane w e re parties. By this time elections w e re four days away, the court order w as impossible to c o m p ly with. A m o ng other problems M o k h i bo Matela-Gwintsa, the IEC legal officer in her affidavit says she a nd the Leader of the B NP could not agree on the correct interpretation of the order. Thabiso Melato, the second respondent, w ho was the Parliamentary candidate for M a a ma Constituency, takes the point that the Petition is defective inasmuch as the following necessary parties have not been joined:- Mr. Phoka Chaolana of Basutoland Congress Party Mr. Mahao of PFD Mr. A. C. Manyeli of NIP Mr. B. Nkuebe of SDU Party Mr. Khanyapa Ntoka an independent candidate Mr. Tsolo Lelala the adversary of Petitioners in CIV/APN/205/98 Thabiso Melato (the second respondent) states that Tsolo Lelala and the Petitioners (i.e. B NP and Mr. Malefane) had consented that both Lelala and Malefane stand as candidates. Locus Standi The test whether the B NP has locus standi was crisply put in the case of Rescue Committee DRC v Martheze 1926 CPD 298 at page 300 as follows:- "Has the person appearing a direct personal interest in the suit? In that case it may be considered as his cause." / There can be no doubt that the B NP had a direct and specific interest as the elections were intending not only to elect Parliamentary constituency members but also a political party that will form a government or opposition as the case m ay be. Section 69 of the Constitution cannot be read in isolation. It has to be read with Sections 87 and 95 of the Constitution. Nevertheless individual members of Parliament and electors are the more important. In a petition challenging the outcome of an election in a constituency, political parties are important, but the individual candidates that political parties endorse are the more important. The answer to this question is that the B NP has a locus standi in this matter. Non-joinder of necessary parties There can be no doubt that once an election in which several people and political parties have participated as Parliamentary candidates is challenged, the other candidates and political parties have a specific and direct interest. The Court of Appeal in Basutoland Congress Party & Others v Director of Elections, C of A (CIV) No.14 of 1988 (unreported), said where a matter involves other parties they should be given an opportunity to be heard. Non-joinder could be a ground for non-suiting an applicant. / In this particular case, we might not necessarily non-suit the B NP a nd M r. Malefane on the g r o u n ds that other candidates a nd political parties w e re not joined because Thabiso Melato, w ho h as a direct a nd specific interest as a party in these proceedings h as b e en joined. T he matter does not e nd there because there is Tsolo Lelala, w ho but for his applications the present proceedings w o u ld not be taking place. Tsolo Lelala b r o u g ht C I V / A P N / 1 6 6 / 98 a nd CIV/APN/205/98 in his e n d e a v o ur to secure nomination for the M a a ma Constituency as a B NP candidate. He certainly h ad a specific a nd direct interest to be the B NP candidate. He h ad joined the B NP in his applications ostensibly in order to see to it that the B NP leadership do not take M r. Malefane's side. Indeed the interim order CIV/APN/205/98 on the face of it as granted by Mofolo J in prayer 3 s h o ws that Tsolo Lelala h ad b e en elected as B NP candidate in t e r ms of the Court Order in CIV/APN/156/98. Tsolo Lelala's alleged victory w as being resisted by the t wo petitioners. He h ad brought the petitioners to court to s h ow cause why:- "The elections of the 10th M ay 1 9 98 held at M a a ma in w h i ch applicant (Tsolo Lelala) e m e r g ed a w i n n er should not be declared lawful." Tsolo Lelala h ad not b e en joined in these proceedings n or his affidavit sought. T he Consent Order of the 19th M a y, 1 9 9 8, in CIV/APN/205/98 on w h i ch the petitioners rely states:- "The n a m es of the contestants to the M a a ma constituency n a m e ly Messrs. T. Lelala a nd L. Malefane are to be forwarded to the Independent Electoral C o m m i s s i on as duly n o m i n a t ed candidates of the said M a a ma Constituency a nd the candidates to stand as i n d e p e n d e nt candidates in the said constituency if they so wish." T he plain language s e e ms to indicate that n o ne of the candidates w a n t ed the other to be the B NP candidate. If something h ad occurred that s h o w ed a c h a n ge of attitude, there should h a ve b e en an indication to that effect f r om the other side. It w as all the m o re necessary to join Tsolo Lelala, the applicant in CIV/APN/156/98 a nd CIV/APN/808/98. H ad Tsolo Lelala b e en joined at least the m o st vital party to this application in respect of the petitioners w o u ld be there. T he papers might be ex facie in order. This has not b e en d o ne therefore serious questions remain. It is doubtful w h e t h er this w o u ld help the petitioners on the merits because the support of Tsolo Lelala might h a ve b e en crucial to persuade the I EC that he w as a b a n d o n i ng his opposition to Leseteli Malefane's candidature for the B N P. Consistency of Petitioners' Interpretation in Order in CIV/APN/205/98 with Judgment in CIV/APN/156/98 Guni J in CIV/APN/156/98 settled the dispute between Tsolo Lelala and Leseteli Malefane (second petitioner) as follows: - "I have therefore found it expedient to allow the people of Ha M a a ma Constituency w ho are the final and ultimate authority as regards the determination of w ho should represent them to exercise their right... The supreme law of the land "1993 Constitution of Lesotho so demands by enshrining every citizen's right to vote for his or her representative in Parliament." Court orders are not interpreted by registrars, but by the Courts themselves. The petitioners deposed to facts allegedly communicated to them by their attorney. As they were not before the Registrar, their attorney should have made an affidavit about what transpired before the Registrar. The Order on which this application is founded is in CIV/APN/205/98. It reads: It is hereby ordered by consent of the parties 1. 2. The matter is removed from the roll and each party is to bear its o wn costs. The names of the contestants to the M a a ma Constituency namely Messrs. T. Lelala and L. Malefane are to be forwarded to the Independent Electoral Commission as duly nominated candidates of the said M a a ma constituency a nd the candidates to stand as independent candidates for the said constituency if they so wish. 3. T he interim interdict granted on the 14th M a y, 1 9 9 8, against the Independent Electoral C o m m i s s i on is hereby removed. This order is not straight-forward. If a matter is r e m o v ed f r om the roll, that is normally the e nd of the matter. Nevertheless the order signifies an a g r e e m e nt to the effect that there is an agreement that the contestants should r un as independent candidates. It b e c o m es puzzling in the light of the aforegoing for the B NP to take the view that it still h ad a right to endorse o ne of the contestants as a B NP candidate. T he history of the dispute between Tsolo Lelala a nd the B NP s h o ws that he w as fighting the nomination of Leseteli Malefane as the B MP candidate in his place. It w as precisely in deciding this very issue that G u ni J ordered that B NP m e m b e rs elect their o wn candidate, so that the B NP Executive should not do it for t h e m. T he petitioners say w h en the application w as w i t h d r a wn on the 19th M a y, 1 9 9 8, this paved the w ay for the B NP to n o m i n a te M r. Malefane. T he fact that the B N P, M r. Malefane a nd Tsolo Lelala by consent agreed to the Order that both Malefane and Lelala w e re to stand as independents is ignored. What Guni J said in CIV/APN/156/98 was reinforced by what Peete AJ (as he then was) said in M. K. Radebby v National Committee of the Basutoland Congress Party, CIV/APN/159/98. In that case, the Basutoland Congress Party Constitution gave the National Executive Committee the final say in the selection of candidates. Peete AJ said: "The party constitution is supreme... Supreme as it is, the constitution of a party is to be interpreted in a manner which is consistent with the provisions and principles of the Lesotho Constitution. Even if there was an inherent power "to save the party" this power cannot give the National Executive Committee power to assume the basic right to select a representative for a constituency." Ramodibedi J in Lesao Lehohla v National Executive Committee of the Lesotho Congress for Democracy, CIV/APN/160/98 faced with a similar provision in a constituency said:- " There is no room for appointment or nomination in those circumstances as suggested by the respondents or at all." It would seem the IEC in not agreeing with the BNP's interpretation of the agreement it made with Lelala and Malefane was consistent with democratic principles as understood by this court. It also correctly refused to read into the tripartite agreement between the BNP, Lelala and Malefane) words that were not there. / Whether the IEC could still accept the Nominations of Lelala and Malefane The IEC w as correct w h en it said it is b o u nd by the Constitution and the National Assembly Order of 1992. Fundamentally, two things must be m a de and settled on time. These are:- 1. The registration of voters. The checking and correction of the voters roll. Then a final voters roll must be issued. 2. Nomination of voters must be done and finalised timeously. In terms of the Constitution, parliamentary candidates at elections represent people of constituencies. They are nominated by the people w ho live in the constituencies. Political parties are mere national associations formed by people with the similar ideas, principles and political objectives. They were initially informal bodies / ELS British, history discloses. As t i me w e nt o n, t h ey b e c a me highly o r g a n i s ed political m a c h i n es that d o m i n a te p a r l i a m e n t a ry g o v e r n m e n t. T he Constitution of L e s o t ho h as r e c o g n i s ed political parties as a reality, b ut like British constitutional practice t h ey h a ve s t u ck to t he principle that e a ch constituency s h o u ld v o te for o ne p a r l i a m e n t a ry representative. D u r i ng this process, a ny p e r s on m ay s t a nd if d u ly n o m i n a t e d. Political parties m ay field or e n d o r se candidates b ut t h ey enjoy no special rights. It s e e ms to me the electoral p r o c e ss is d e s i g n ed to be fair to all candidates. If t he t i me f r a me is n ot o b s e r v e d, t he o t h er c a n d i d a t es h a ve a right to object as this is likely to prejudice t h e m. T h ey h a ve a direct a nd specific interest. In other w o r d s, a p e r s on or candidate w ho exercises his rights to see that those rights are n ot violated m u st n ot t h e r e by violate t he rights of others. It s e e ms to me that political parties displayed a t e n d e n cy to ignore o t h er candidates w ho a c c o r d i ng to l aw w e re e v en m o re i m p o r t a n t. T he C o u rt of A p p e al in B a s u t o l a nd Congress Party & Others v Director of Elections 7 Others C of A ( C I V) N o. 14 of 1 9 98 ( u n r e p o r t e d) therefore e m p h a s i s ed this fact. It is precisely for this r e a s on that in Section 69 of the Constitution there is no reference to political parties. It is the d u ty of the I EC to enable electors to elect freely candidates of their choice in efficiently r un elections. By the s a me token, electors h a ve a right to enforce their right to participate in g o v e r n m e nt t h r o u gh properly n o m i n a t ed a nd elected m e m b e r s. F or this reason, they c an challenge a n y b o dy a nd a ny practice that i m p e d es an election. T h ey c an also unseat a ny p e r s on in Parliament t h r o u gh judicial proceedings. It is therefore w r o ng for a ny political party to treat an election as if it is for it alone or for political parties only. T he duty of the I EC is to organise an election in s u ch a w ay that all candidates are dealt w i th fairly a nd evenly. In this w ay it enables every elector to exercise his or h er right to elect a representative in Parliament. U n l e ss an election timetable is a d h e r ed to w i t h in the guidelines specified in Section 48 of the National Assembly Elector Order 1 9 9 2, electors will not be able to vote. In other w o r ds n o m i n a t i on of candidates c a n n ot go on indefinitely. T he candidate w h e t h er belonging to a political party m u st be given sufficient t i me to c a m p a i gn in a constituency. T he electors m u st also be given time to learn a nd scrutinise the candidate so that they c an exercise their right to elect knowledgeably a nd responsibly. T he time limits set out in the National Assembly Election Order are not only for the benefit of election candidates, they are for the voters as well. T he B MP did not h a ve unlimited time within w h i ch to field candidates. T he I EC for the best of motives tried to a c c o m m o d a te the B M P. On the 8th M a y, 1 9 9 8, they w a r n ed the attorney of the B MP of the internal problems the B MP a nd other political parties w e re causing in the following w o r d s: " Y ou will appreciate the impact w h i ch the delay in the finalisation of these applications will have on the I EC with the election date only t wo w e e ks a w a y. T he obvious e x a m p le is the timeous printing of ballot papers w h i ch m u st s h ow the n a m es of the candidates." T h e re c an be no doubt therefore that the B MP w as out of time after the 2 0 th April, 1 9 9 8. There w as nothing strictly speaking that obliged the I EC not to close the door on the B MP because it w as not a party to CIV/APN/156/98 that h ad b e en brought before that date by Tsolo Lelala. T he B MP a nd M r. Malefane should h a ve taken this point against M r. Lelala a nd got Tsolo Lelala's application dismissed or stayed on g r o u n ds of non-joinder. Effect of the Lenience of the IEC on Time Limits W h en CIV/APN/205/98 w as finalised on the 19th May, 1998, it should have been clear that only three days were left. In the light of what I have said above therefore, it seems the IEC was unnecessarily subjected to harsh criticism for telling the B NP that it w as too late to accept the B NP candidate w ho w as selected contrary to the agreement which had been m a de an order of court, and on which the B NP w as relying. The IEC w as also not free from blame for standing aloof in court proceedings that had the effect of impeding the electoral process contrary to the National Assembly Election Order 1992. Although the IEC w as not originally a party in CIV/APN/156/98, it had been served. It should have intervened and applied for joinder and showed that the problems of these political parties were leading to breaches of the provisions of the National Assembly Elections Order and obstructing its constitutional duty of organising general elections. The IEC should have m a de its concerns clear to the court by seeking appropriate relief from the court instead of writing to attorneys for political parties which had problems. Courts do what / litigants p e r s u a de t h e m, to d o. A party w ho d o es n ot c h o o se to be h e a rd is often d e e m ed to be c o n s e n t i ng to a ny o r d er t he court m i g ht d e em fit to m a k e. W h i le t he I EC did n ot act wisely in n ot p u s h i ng t he courts to finalise applications b r o u g ht by m e m b e rs of political parties s e e k i ng party n o m i n a t i o n, I am of the v i ew that t he vitriolic attack that w as directed at t he I EC w as unjustified. To project t he difficulties that political parties h a ve internally on t he I EC w h i ch w as d o i ng its u t m o st to a c c o m m o d a te s u ch political parties, s e e ms to be p u n i s h i ng t he I EC for its a c c o m m o d a t i ng attitude. In t he e nd it w as t he B NP that m a de it impossible for a ny of its m e m b e rs to stand by d e m a n d i ng (contrary to the order it w as relying u p o n) that o ne of t he candidates be registered as a B MP candidate. If p r o c e e d i n gs h ad b e en b r o u g ht by M a l e f a ne alone, claiming his n o m i n a t i on as i n d e p e n d e nt h ad b e en refused, t he I EC w o u ld h a ve b e en in difficulty b e c a u se of its lenience in permitting court p r o c e e d i n gs to be b r o u g ht at leisure contrary to t he National Assembly O r d er of 1 9 92 a nd contrary to a ny ideas of c o n v e n i e n c e. Court's Finding It w as argued that the court order C I V / A P N / 2 0 5 / 98 should be interpreted as m e a n i ng that by seemingly ordering the I EG to register, Tsolo Lelala a nd M r. Malefane as duly n o m i n a t ed so that they could stand as independents, this entitled the B NP to n o m i n a te M r. Malefane as its candidate. In the first place, the order did not order the I EC to do so in specific terms. Nevertheless the I EC refused to do so because the B MP w a n t ed M r. Malefane to be registered as a B NP candidate contrary to w h at the court order seemingly said. I agree with the I EC that the B NP w as acting contrary to the consent order of the 19th M a y, 1 9 9 8, this the B NP could not be allowed to do. T he B NP internal problems are responsible for its failure to field a candidate. This is plain to all sides, the B N P 's behaviour of assassinating the character of the I EC in this m a n n e r, b l a m i ng it for w h at are really B N P 's internal problems did not create a good impression. W h at w as really disturbing w as insisting on nominating o ne of the contentious candidates contrary to the very order that w as being interpreted as directing the I EC to register the t wo contesting litigants in CIV/APN/205/98. There is therefore no option but to dismiss the petitioner's petition with costs. It follows automatically, therefore, that in t e r ms of section 107(l)(a) the second respondent Thabiso Melato h as to be declared as having b e en validly elected. It is so ordered. I agree: I agree: W . C . M. M A Q U TU J U D GE M . M. B A M O D I B E DI J U D GE J U D GE Delivered on the 16th day of September, 1998. F or petitioners F or 1st respondent : Messrs. D. & S. Kuny For 2 nd respondent : M r. M. T. Matsau : Messrs. Musa & M. Ntlhoki