Basotho National Party and Others v Independent Electoral Commission and Another (CIV/APN 207 of 98) [1998] LSCA 49 (19 May 1998)

IN T HE H I GH C O U RT OF L E S O T HO CIV/APN/207/98 In the matter between: Basotho National Party Basotho Congress Party M a r e m a t l ou F r e e d om Party a nd 1st Applicant 2 nd Applicant Applicant 3rd Independent Electoral C o m m i s s i on Attorney General 1st R e s p o n d e nt 2 nd Respondent J U D G M E NT Delivered by the H o n o u r a b le Chief Justice M r. Justice J . L . K H E O LA on the 19th d ay of M a y. 1998. Like both counsel did yesterday, I am also going to read extensively from the affidavit of the applicants and the respondents, I do not have time to give s u m m a ry of what these people the deponents have said so what I am going to do is to read the affidavits of the applicants and the respondents and then later at my leisure I will try to c o m p i le a proper j u d g m e n t. I don't m e an that w h at I am g o i ng to say is not a p r o p er j u d g m e n t, it is to s o me extent but it is n ot as detailed as it o u g ht to b e, there is no t i me for s u ch a detail. So y ou will e x c u se me for looking f r om o ne d o c u m e nt to another in order to read these affidavits. T h is is an application for an order in the following t e r ms : 1. T he rules of court pertaining to notice a nd service be dispensed w i th a nd the matter be h e a rd on u r g e n c y. 2. A rule nisi be issued returnable on the 18th at 2:30 p . m. or a date to be d e t e r m i n ed by this H o n o u r a b le C o u rt calling u p on the r e s p o n d e nt to s h ow cause, if any, w h y; (a) First a nd s e c o nd respondents' refusal to supply the applicants w i th copies of the provisional electoral lists for the eighty constituencies free of charge shall not be declared unlawful. (b) First a nd s e c o nd respondents shall not be ordered to provide or supply applicants with each a c o py of the provisional electoral list for each of the eighty constituencies. © First a nd s e c o nd respondent shall not be ordered to delay the elections until such time as the applicants h a ve h ad a reasonable opportunity to study the electoral list a nd m a ke objections thereto, should they so wish. (d) R e s p o n d e nt shall not be ordered to p ay costs in the event of opposing this application. (e) Applicant shall not be granted such further and/or alternative relieve. That prayer I operates with i m m e d i a te effect in the interim. This application w as brought as an ex parte application on a certificate of urgency. It w as granted by my Brother Mr. Justice Mofolo on the 16th April, 1 9 98 a nd returnable on the 18th April, 1 9 9 8. T he leaders of the three (3) applicants h a ve filed the founding affidavits w h i ch set out the alleged irregularity c o m m i t t ed by the Independent Electoral C o m m i s s i on ( I E C ). T he m a in affidavit is m a de by M r . M o l a po Q h o b e la w ho is the leader of the 1st applicant, in p a r a g r a ph 9 of his f o u n d i ng affidavit he alleges that after the dissolution of parliament on the 2 7 th of F e b r u a r y, 1 9 9 8, notification a nd date for closing of n o m i n a t i o ns for the election of a n ew parliament w e re g i v en in the g o v e r n m e nt gazette on the 3rd M a r c h, 1 9 9 8. In t e r ms of the said gazette, the 2 3 rd M a y, 1 9 98 w as p r o c l a i m ed as polling d ay for holding of a general election to return m e m b e rs of the National A s s e m b ly for all constituencies of the K i n g d om of L e s o t h o. T he notice further decreed that the date on a nd f r om w h i ch the registration of electors w as to be s u s p e n d ed w as the 10th of M a r c h, 1 9 98 a nd the date on w h i ch n o m i n a t i on of candidates w as to close w as the 2 0 th April, 1 9 9 8. He continues to d e p o se that in reply on the 14th April, 1 9 98 the authorized representatives of the applicants m et the I EC in a m e e t i ng u n d er the c h a i r m a n s h ip of the c h a i r m an of the I EC n a m e ly M r . M a f i sa at the headquarters of the I EC in M a s e r u. On behalf of the B . C . P. M r . T . M a k h a k h e, the d e p u ty leader, a nd M r . S . T o l o a n e, the Treasurer G e n e r a l, of the party together w i th the other authorized representatives of the s e c o nd a nd third applicants, jointly submitted a request for copies of the electoral list in respect of the eighty constituencies. In reply to the aforesaid request M r . M a f i sa told the authorized representatives that he w as not prepared to supply t h em with the said electoral lists. T he reasons given by h im w e re as follows: 1. T he computers w e re broken a nd he therefore could not physically provide t h em with the lists. 2. That in terms of his understanding of the provisions of the election order, there w as no legal requirement that the I. E. C. provide such lists to the political parties concerned. In paragraph 14 he alleges that he further wishes to point out that at that stage w h en nomination took place, request w e re m a de on nomination d ay by M r . L e b e n ya C h a k e la to the nomination court in M a p u t s oe Constituency N u m b er 15 M r . L e b e n ya C h a k e la pointed out that the list w as public d o c u m e nt and requested sight of a c o py in order to m a ke a photocopy for himself, in reply thereto the returning officer at the nomination court said to Mr . Chakela that the court h ad instructed h im not to release the lists to a n y b o dy under a ny circumstances. At the stage w h en the nomination court said on the 20th April, the nomination court h ad in its possession an electoral list, this w as seen by M r . C h a k e l a, it w as quite clear that it w as electoral list w h i ch they did not d e ny to be the electoral list a nd it w as also clear that they w e re using the electoral list in order to c h e ck for nomination p u r p o s es a nd in particular that M r . C h a k e la w ho w as n o m i n a t ed w as a voter in that constituency. P a r a g r a ph 1 5, after the c o m p l e t i on of the registration of voters, c o m p u t er generated lists of voters b e c a me available for public inspection on the 14th April, 1 9 98 in e a ch voting centre in e a ch constituency, these w e re b u l ky d o c u m e n t s, the list for s t a d i um area for instance, the constituency w i th the highest voters 21 4 05 contained for an e x a m p le 5 56 p a g e s, this lists w e re constantly s u r r o u n d ed by voters w ho h ad c o me to e x a m i ne the list in order to d e t e r m i ne w h e t h er their n a m es w e re on the list. It w as impossible for a n y o ne s e e k i ng to study a list as a w h o le a nd deal w i th it m e a n i n g f u l ly to do so in those circumstances. In p a r a g r a ph 16 M r . M a k h a k he the d e p u ty president of B . C . P. a nd acting as duly authorized representative of the first applicant h a v i ng b e en duly authorized thereto by w ay of written authority u n d er the signature of the party secretary a p p r o a c h ed the Director of Elections a nd they requested the I EC to m a ke copies available in order that the B . C . P. s h o u ld be in a position to organize a m e a n i n g f ul systematic study a nd investigation of e a ch list. T h is request w as m a de to the aforementioned Director on the 14th April, at the latter's office in M a s e r u. T he aforesaid director, the first r e s p o n d e nt a n s w e r ed that the I EC w as not obliged to m a ke copies of the list available to the political parties. M r . M a k h a k he w as a m a z ed at that answer, he replied that the l aw required h im to m a ke copies available free of charge to the political parties a nd that this h ad b e en the practice in the past. T he director h o w e v er disputed the contention that the I EC w as under any obligation to provide copies of the electoral list. In paragraph 17 M r . M a k h a k he thereafter w e nt to his o wn constituency for w h i ch he h ad b e en a m e m b er of parliament n a m e ly Maliepetsane a nd found it impracticable to carry out a ny meaningful check on the list because of the congregation of persons trying to get access to the list. In desperation M r . M a k h a k he returned to the Director of Election on the s a me day or the d ay thereafter a nd emphasise the absurdity of trying to check the electoral list at the registration centre a nd r e n e w ed this request that the I EC m a ke copies available. This request w as rejected by the Director of Elections w ho then said that the B. C. P. could b uy c o m p u t er discs a nd h a ve the information copied f r om discs in the possession of the I E C, w h en this w as reported to us we investigated, so says M r . M a k h a k he the cost of purchasing the discs in question a nd the cost of employing a firm to c o py the information a nd supply printouts on the list a nd discovered the cost thereof to be b e y o nd the m e a ns of the party. In paragraph 1 9, he alleges that it w as at that stage to the 17th or 18th of April, a nd very close to the 19th of April being the d ay on w h i ch the I EC h ad decreed that the last day on w h i ch objections to the electoral list could be allowed. In paragraph 20 he points out that e v en subsequent to the 19th of April w h en the electoral lists w e re no longer n e e d ed for the p u r p o se of public inspection, the I EC despite the fact that there w e re spare copies available f r om the constituencies maintained this refusal to m a ke the copies available f r om every constituency. In paragraph 2 1, he further points out that the five d a ys allowed for the m a k i ng of objections w as unreasonably short a nd that it in any event w as not in compliance with the election order, that is order n u m b er ten (10) of 1 9 9 2. In 22 he respectfully submit that there is no other appropriate a nd m e a n i n g f ul r e m e dy available to the applicants, if the elections w e re to proceed in the present circumstances the democratic process will sustain irreparable h a r m. T he balance of convenience requires the p o s t p o n e m e nt of election to enable the opposition parties to carry out their democratic duty to scan a nd verify the correctness of electoral lists. He further submits that there is a probability that potential p h a n t om voters m ay play a critical role in the election unless the opposition parties are given a reasonable opportunity to study a nd object w h e re necessary to irregularities in the electoral lists. In paragraph 2 4, he submits that the I EC in breach of the provisions of the electoral order has clearly prevented the fulfilment by the political parties of these obligations to monitor the registration process in terms of section 16 of the election order a nd has further- m o re not complied with the I E C 's duty to assist the political parties in terms of section 1 6B to obtain information on activities relating to the registration of electors. In paragraph 2 5, he alleges that after the refusal to supply the provisional electoral lists, they decided that they should take legal action. H o w e v er they w e re informed towards the e nd of April that the second applicant h ad ordered an audit of the electoral lists. T h ey decided to wait until the results of such audit b e c a me available. N ow I continue with the affidavit of M r . S e k a ra M a f i sa the C h a i r m an of the Independent Electoral C o m m i s s i on w ho avers in paragraph 5, that on the 13th of April, 1 9 98 a provisional version of the general register as contemplated by section 2 1A of the National A s s e m b ly Election O r d er 1 9 92 w as complete and copies of such lists w e re displayed at all centres w h i ch w e re used for the registration of electors in 1 9 9 8. Pursuant to s u ch publication, h e, through the m e d i um of radio broadcast, invited all political parties to a m e e t i ng at the offices of the I E C. H is distinct recollection is that by a nd large all registered political parties participated in this meeting. At the m e e t i ng he informed all w ho pariticapated therein that a provisional version of a general register h ad b e en published as stated a nd asked all parties to encourage all their supporters to go to the centres a nd inspect the list a nd m a ke objections thereto or claims for inclusion therein w h e re n a m es w e re mistakenly omitted. In this context he says he should also refer to L e g al N o t i ce n u m b er 16 of 1 9 98 regulation 5 w h i ch sets out procedure if an electors n a me is omitted f r om the provisional version of the register. He continues that he admits that a request w as m a de for copies of provisional electoral lists to the said request he responded that his obligations are as prescribed by l aw a nd that in terms of section 21 (a) there w as no obligation to supply political parties with provisional version of the general register, he also pointed out to t h em that the obligation i m p o s ed on h im by l aw w as to the effect that such lists should be published within each electoral area or an extract containing that part of the register that relates to the area concerned. In paragraph 6 he alleges that here he should point out that the d e p o n e nt on behalf of the B. C. P. h ad never attended a ny of the meetings c o n v e n ed by h im a nd the averments in his founding affidavit as to w h at h a p p e n ed at those meetings constitutes hearsay a nd should be disregarded by the court. Nevertheless he does recollect that representatives of B. C. P. requested t h em to supply t h em with copies of provisional version of the general register as it w o u ld assist t h em in checking lists in their o wn area, he says that he m u st reiterate that they accepted the soundness of his legal position that the I EC is not obliged to supply t h em with copies of provisional version, h o w e v er he should reiterate that averments in this paragraph are incorrect, it did not tell t h em that the c o m p u t e rs w e re broken, he told t h em that the printer w as non-functional a nd that it w as not possible to print the list they requested. H o w e v er in the spirit of a c c o m m o d a t i on he called in their c o m p u t er expert a nd he said that if political parties could provide their o wn diskette, he w o u ld try to a c c o m m o d a te their wishes. M r . M a f i sa says that he wishes to point out that the B. N. P. subsequently provided their o wn diskette a nd copies of the register w e re supplied. M r . M a k h a k he brought a diskette for his constituency a nd there a c o py w as m a de a nd given to h i m. M r . M a f i sa said he is surprised b e y o nd m e a s u re to observe that an issue w h i ch he h ad h o p ed that h ad b e en consigned to the limbo of oblivion has n ow b e en resurrected by the three applicants probably in pursuit of s o me hidden a nd obscure agenda. In paragraph 10 of his affidavit, he alleges that all that c an be said about this paragraph, that is paragraph 17 of the applicants is that I EC is supremely h a p py that the ordinary M a s o t ho displayed a k e en interest in checking the list, he fails or discern a ny rational basis for the complaint about the list bearing in m i nd that M r . M a k h a k he himself h ad procured a list for his constituency a nd o ne of the co- applicant B . N . P. apparently h ad no pecuniary p r o b l e ms in procuring a diskette a nd obtain the list after all charity begins at h o m e. Paragraph 15, it is submitted that Legal Notice N u m b er 16 of 1 9 98 of the National A s s e m b ly Regulations 98 Regulation 15 provide that a ny person w h o se n a me is not on a provisional list but w ho claims to be registered as an elector shall m a ke an application to the Director to h a ve his or her n a me included in the final list not later than 5 days after posting of the provisional list. It will be observed that only in respect of claims for inclusion of n a m es w h i ch w e re mistakenly omitted is the shorter period of 5 days provided. It is accepted that section 33 subsection 2(a) of the National A s s e m b ly Election order provides that an objection shall be l o d g ed within 15 d a ys or s u ch longer t i me as a Director m ay specify f r om posting of provisional lists. He says he w i s h es to point out that in respect of objections, the 15 d a ys t i me limit a l l o w ed in every c a se t h o u gh o m i s s i on of n a me in register is not an objectnable matter but o ne w h i ch requires a claim for inclusion, he says that he m u st also state that I EC h ad d e v i s ed t wo separate f o r ms for correcting the provisional register, o ne dealing w i th o m i s s i o ns f r om the register a nd other dealing w i th objection for inclusion in the register of the n a m e s. In 16 he alleges that section 9 ( b) clearly provides that the c o m m i s s i on m ay adapt a ny of the provisions of the electoral l aw as m a y be required to achieve the p u r p o s es of the electoral order to s u ch an e x t e nd as the c o m m i s s i on consider as necessary to m e et the exigencies of particular situation. It m u st be reiterated h o w e v er that the 15 d ay t i me limit prescribed by section 3 3, 2 ( a) of the National A s s e m b ly Election O r d er 1 9 92 for m a k i ng objections to the provisional version of the general register w as a d h e r ed to. P a r a g r a ph 17, he alleges that the contents of this p a r a g r a ph that is p a r a g r a ph 22 of the applicants are v a g ue a nd e m b a r r a s s i n g, a nd a b o u nd in generalities the applicant s e e m ed to forget that after the publication of the provisional list a nd after d ue consideration of claim for inclusion a nd objections a final electoral list h ad b e en c o m p i l ed by the I EC after undertaking a m a s s i ve exercise in w h i ch considerable public funds h ad b e en used. In terms of section 24 it c an be m a de available to a ny m e m b er of the public on p a y m e nt of a fee. Section 24 subsection 4 provides that after the printing of the electoral list, the Director of Elections is legally obliged to provide a c o py of the list free of charge to the authorized representatives of every political party. He says he wishes to inform the court that in strict c o m p l i a n ce with the l aw copies of the lists h a ve b e en supplied to all political parties. It is indeed a matter of s o me comfort to h im that n o ne of the applicants h a ve any complaints about the final product w h i ch is the electoral list. It is strange a nd difficult to understand to say the least that three political parties h a ve concentrated their energies towards an absolete, a nonfunctional provisional list w h i ch w as published over a m o n th ago. It is a notorious fact that the electors in this country are getting themselves geared to exercise the democratic a nd inalienable right to cast their vote a nd elect the g o v e r n m e nt of their choice w h i ch will lead L e s o t ho into the next millennium. It will m a ke the I EC a laughing stock not only to people in this country but even internationally especially in v i ew of the m u ch publicized fact of the arrival of international observers w ho are here to observe a nd elevate the conduct of the elections, evaluate the conduct of the elections. He g o es on to say that he should add that the p o s t p o n e m e nt of the elections will h a ve the effect of d a m p e n i n g, the spirit of the B a s o t ho people and create p r o b l e ms of instability, insecurity and chaos in this country. No court of l aw w o u ld in a n y w ay contribute to create such a disastrous situation in a ny country. T he balance of convenience d e m a n ds that in the public interest the election be held as scheduled. He g o es on in other paragraphs to s h ow that all parties w e re given m o n ey instalment of Ml I 875.00 to assist in their expenses. That is about all regarding the evidence in the affidavits. I n ow c o me to the law a nd try to interpret it as best as I can. There are t wo interpretations of the s a me section by the applicants and the respondents. It is my onerous task to give a final interpretation w h i ch is the correct one. I begin with section 21 A(I) of the National A s s e m b ly Election O r d er 1 9 92 w h i ch reads as follows; "Immediately after the dissolution of the National A s s e m b ly a nd at any other time w h en it appears to the Director of Elections that a general election is to held, he or s he shall - (a) prepare a provisional version of the general register ; a nd (b) as s o on as practicable afterwards, e n s u re that there is published within e a ch electoral area either - (I) that provisional version; or (ii) an extract c o n t a i n i ng the part of that provisional version that relates to the area c o n c e r n e d. T h at is the section w h i ch deals w i th w h at is called the provisional version of the general register. I shall not deal w i th section 22(1) a nd ( 3) of the National A s s e m b ly Election O r d er 1 9 92 ( T he O r d e r) w h i ch reads as follows: (1) T he Director of Elections m a y, w h e n e v er he or she considers it necessary to do so, a nd shall, as s o on as practicable after the registration of electors is suspended in accordance with section 19 (1), prepare - (a) in the c a se of a g e n e r al election - an electoral list for each constituency: or (b) in the case of a by-election or a fresh election for a constituency - an electoral list for the constituency. (3) T he Director of Elections shall provide a c o py of each of the lists prepared under this section, without charge - (a) to the authorized representative of e a ch political party; a nd (b) to each area electoral officer. T h at is the section w h i ch deals w i th the electoral lists for e a ch constituency. A n o t h er section w h i ch deals w i th electoral lists is section 2 4 ( 1) a nd (4) of the order w h i ch read as follows: " ( 1) T he Director of Elections shall arrange for the printing o f- (a) in the case of a general election - an electoral list for e a ch constituency n ot later t h an 30 d a ys before the polling d a y, or if there is m o re t h an o ne polling d a y, the first polling d ay for the election. (4) As s o on as practicable after an electoral list is printed u n d er this section, the Director of Elections shall p r o v i de a c o py of the list, w i t h o ut c h a r ge - (a) to the authorized representative of e a ch political party; a nd (b) to the area electoral officer of the electoral area concerned." In their application the applicants w e re requesting that they be provided with the provisional electoral lists in terms of section 2 2 ( 3) of the Order. It is very clear f r om the reading of this subsection that it is written in m a n d a t o ry terms that the Director of Elections shall provide a c o py of e a ch of the lists prepared under this section, without charge, to the authorized representative of e a ch political party a nd to each electoral officer. It is quite clear to me that M r . M a f i s a, the C h a i r m an of the I EC misconstrued the l aw w h en he said that the I EC is not u n d er a ny obligation to provide the applicants with the electoral lists free of charge. T h at is clearly stated in subsection 3 of section 22 of the Order. In his affidavit M r . M a f i sa s e e ms to use the terms "provisional version of the general register" under section 2 1 A ( 1) of the O r d er a nd the t e rm "electoral list" under section 2 2 ( 1) (a) of the O r d er interchangeably. I do not agree with h im that those t wo d o c u m e n ts are the s a m e. I think w h at the applicants w e re applying for is an electoral lists. H is first reaction to the applicants' request w as that the I EC w as u n d er no obligation to supply t h em w i th s u ch lists. It s e e ms to me that he subsequently discovered that he w as w r o n g. He then said that he w as unable to print copies of the lists for t h em b e c a u se his printer w as out of order. I criticise M r . M a f i sa for h a v i ng relied on o ne printer without a ny spare printer to be u s ed in case of an e m e r g e n cy similar to the o ne he h a d. I disagree w i th the s u b m i s s i on that w as m a de that L e s o t ho is not like S o u th Africa w h e re they h a ve lots of m o n e y. I am quite sure that the G o v e r n m e nt of L e s o t ho c an provide I EC with t wo or several printers if I EC m a de s u ch a request. Elections are a very important event in a ny country. T he p r o g r a m me for elections is very tight a nd h as m a ny d e ad lines. In order to observe s u ch d e ad lines M r . M a f i sa o u g ht to h a ve b e en provided w i th adequate e q u i p m e n t. Be that as it m ay he w as unable to provide the applicants w i th w h at they w e re entitled to in law. It w as not because he w as hostile to t h em but b e c a u se he did not h a ve the right e q u i p m e nt at the right time. M r . M a f i sa s e e ms to h a ve h ad a very g o od w o r k i ng relations w i th all the political parties until this incident w h en there is a confrontation b e t w e en h im a nd the applicants a nd unpleasant w o r ds are used. T h at the representatives of the parties h a ve to be provided with electoral lists without a charge is repeated in t wo sections of the O r d er - sections 2 2 ( 3) a nd 24(4). So the applicants h a ve a cause for complaint. N ow I c o me to the critical question. W as the irregularity c o m m i t t ed by the I EC so serious that the elections should be p o s t p o n e d? D o es this Court, the H i gh Court of Lesotho, h a ve the p o w er to postpone the elections? H as it ever h a p p e n ed in this country that the H i gh Court ever postponed general elections? H is Majesty T he K i ng has fixed the polling day. I shall a n s w er all the questions I h a ve p o s ed above. I shall n ow deal with the gravity of the irregularity c o m m i t t ed by the I E C. It is not actually alleged that it w as a deliberate act on the part of the I EC to c o m m it this irregularity. It w as because their printer w as out of order m a k i ng it impossible to print the lists. It m u st be pointed out that these electoral lists w e re published in every electoral area w h e re voters w e re given the chance to inspect t h em in order to find out whether their n a m es w e re not omitted. In their o wn affidavits the applicants allege that at these electoral there w e re large g r o u ps of voters w ho w e re checking the lists. T he case before me is not that large n u m b e rs of voters w ho are followers of the applicants, f o u nd in d i s m ay that their n a m es h ad b e en omitted. E v en the leaders of the applicants do not c o m p l a in that their n a m es w e re omitted in that list. I say this b e c a u se the I EC provided t h em w i th diskkets f r om w h i ch the leaders of the s e c o nd respondents p r o d u c ed copies of the electoral lists. T h ey do not c o m p l a in that their n a m es w e re omitted. T h ey c o m p l a in of the possibility of the so called p h a n t om voters. H ow they w e re g o i ng to establish f r om the lists that certain registered voters w e re p h a n t om voters, is b e y o nd my understanding. W h at is important as far as I am c o n c e r n ed is that the voters including the applicants' supporters w e re properly registered a nd their n a m es a p p e a r ed inn electoral lists. T h at w as the reason w hy there w e re no long q u e u es of p e o p le c o m p l a i n i ng that they h ad not f o u nd their n a m es in the lists. T he applicants a nd their Senior C o u n s e l, M r . S o g g o t, are of the o p i n i on that the irregularity c o m p l a i n ed of g o es to the root of the elections a nd that o n ce it h as b e en p r o v ed their application m u st succeed. I do not agree w i th that s u b m i s s i on b e c a u se it is the voters w ho are g o i ng to cast their votes b e c a u se their n a m es h a ve b e en included in the lists. T he suspicion by applicants a b o ut the so called p h a n t om voters is neither here n or there. It is an unsubstantiated suspicion. T h ey h a ve not filed a single affidavit f r om a voter that his or her n a me has b e en e x c l u d ed f r om the electoral lists. I find that the irregularity c o m m i t t ed by the I EC is not so serious that the general elections h a ve to be p o s t p o n e d. T he e v i d e n ce of M r. v an der B e rg is f o u nd in his supporting affidavit. He describes himself as a forensic investigator. T he audit w h i ch w as c o n d u c t ed u n d er his supervision a nd the analysis of the electoral lists disclosed that an analysis on Constituency 5 7, w h i ch w as selected at r a n d om a nd an analysis of Constituencies 5 6, 5 7, 5 8, 59 a nd w h i ch w e re analysed collectively, they f o u nd an inexplicable h i gh n u m b er of voters, up to ten times the average, w ho w e re b om on the specific d a ys of the year; for e x a m p l e: In constituency 57 consisting of 9 1 96 voters, w h o se full dates of birth w e re recorded, 2 30 voters w e re recorded as h a v i ng b e en b om on the first of January. T h is a m o u n t ed to approximately 9 times the expected average. In constituencies 5 6 , 5 7 , 5 8 , 59 a nd 6 0, taken collectively a nd consisting of 3 8 6 46 voters w h o se full dates of birth w e re recorded, 1 1 00 of these w e re recorded as h a v i ng b e en b om on the first of January. T h is a m o u n t ed to a p p r o x i m a t e ly 9 times the expected average. T he evidence of M r. v an der B e rg is not helpful to the Court because the averages w h i ch he relies on are based on the findings in developed countries in w h i ch registrations of births is a regular practice a nd all the people b om in such countries h a ve accurate birth certificates. In L e s o t ho the majority of people do not k n ow the dates of their births. T h ey do not h a ve a ny birth certificates. It is not surprising that m a ny people are recorded as having b e en b om on the s a me date. It is a date they probably decided that it is g o od e n o u gh for t h e m. Or they w e re told by their parents or e v en older friends that they w e re b om on that particular date. T h o se voters h a ve no birth certificates a nd I do not see h ow the applicants can disprove those dates of birth. It s e e ms to me that the voters/followers of the applicants w ho live in the s a me villages with the people w h o se dates of birth are causing s o me concern, ought to h a ve raised objections. T he evidence of M r. v an der B e rg is not conclusive. T he voters concerned m ay h a ve lied about their dates of birth but he is in no position to refute those allegations. I n ow a n s w er the m o st important question I p o s ed a b o ve w h e t h er this Court h as the p o w er to p o s t p o ne the polling d ay that h as b e en p r o c l a i m ed by H is M a j e s ty T he K i n g. In t e r ms of section 1 19 of the Constitution of L e s o t ho the H i gh C o u rt h as unlimited original jurisdiction to h e ar various matters stated in the section. Certain statutes c an limit the jurisdiction a nd confer jurisdiction on other bodies. T he N a t i o n al A s s e m b ly Election O r d er 1 9 92 p r o v i d es in section 9 9A that T he K i ng c an p o s t p o ne the elections. T he p o w e rs of the H i gh C o u rt are set out in section 1 00 to 1 12 (inclusive) w h i ch deal w i th election petitions. T h e re is no provision in the a b o ve O r d er giving p o w er to this C o u rt to p o s t p o ne the polling day. ' F u r t h e r m o re I say that e v en if this C o u rt h ad the p o w er to p o s t p o ne the polling d a y, in the present case the irregularity c o m p l a i n ed of is not so serious that it w o u ld entitle the applicants to a p o s t p o n e m e n t. I disagree w i th the allegation that the applicants h a ve no other r e m e d y. T h ey h a ve the right to bring election petitions after a specified period after the elections. F or the reasons stated a b o ve the rule is discharged w i th costs. J. L K H E O LA C H I EF J U S T I CE 1 9 TH M A Y, 1998 For Applicant For Respondents - Mr T a m pi - M r. Soggot