BNP guns for for­mer mem­bers’ seats

Lesotho Times - - News - Lekhetho Nt­sukun­yane

THE Ba­sotho Na­tional Party (BNP) has filed a pe­ti­tion in the High Court seek­ing the dis­missal of two for­mer mem­bers, ’Makhotso Matšu­mun­yane and Le­so­jane Leuta, as mem­bers of par­lia­ment (MP) in the Na­tional As­sem­bly.

In a pe­ti­tion lodged on Mon­day this week, the BNP, through its lawyer At­tor­ney Tu­misang Mosotho, seeks the cor­rect in­ter­pre­ta­tion of sec­tion 188 (3) of the Na­tional As­sem­bly Elec­toral Act of 2011, on whether or not Ms Matšu­mun­yane and Mr Leuta’s seats in the Na­tional As­sem­bly be­came va­cant by virtue of their dis­missal as BNP mem­bers.

Cited as first to fifth re­spon­dents in the mat­ter are the Na­tional As­sem­bly Speaker Ntl­hoi Mot­samai, In­de­pen­dent Elec­toral Com­mis­sion (IEC), Ms Matšu­mun­yane, Mr Leuta and At­tor­ney-gen­eral Tšokolo Mak- hethe re­spec­tively.

The party also wants the court to de­clare va­can­cies in the Na­tional As­sem­bly “in terms of sec­tion 188 (3) of the Na­tional As­sem­bly Elec­toral Act, 2011 by rea­son of the dis­missal of the third and fourth re­spon­dents” from the BNP.

It wants Ms Mot­samai to be or­dered to ap­point the next two per­sons on the party list “and in or­der of pref­er­ence as mem­bers of the na­tional As­sem­bly.”

Sec­tion 188 (3) of the Na­tional As­sem­bly Elec­toral Act of 2011 reads that a mem­ber of the Na­tional As­sem­bly al­lo­cated a seat by a pro­por­tional rep­re­sen­ta­tion shall va­cate that seat if the mem­ber resigns as a mem­ber, resigns from the po­lit­i­cal party un­der which the mem­ber was elected, crosses the floor, dies or be­comes dis­qual­i­fied for be­ing a mem­ber un­der the Act.

BNP, there­fore, con­tends that “in es­tab­lish­ing the cor­rect in­ter­pre­ta­tive ap­proach of the above le­gal pro­vi­sion, the Hon­ourable court should not only pay due re­gard to the or­di­nary gram­mat­i­cal mean­ing of the words in the text; but should con­sider them as a whole, its po­lit­i­cal his­tory and pur­pose”.

“The his­tory of the elec­toral sys­tem in Le­sotho re­flects that the MMP (Mixed Mem­ber Pro­por­tion) elec­toral model was adopted in or­der to ac­com­mo­date rep­re­sen­ta­tion in the Na­tional As­sem­bly of po­lit­i­cal par­ties who have a pop­u­lar vote na­tion­ally but fail to win at the con­stituency level. Thus, in or­der to ar­rive at the true in­ten­tion of the drafts­man of sec­tion 188 (3) of the Na­tional As­sem­bly Elec­toral Act, 2011, the words in is­sue must be in­ter­preted in the con­text of the Act as a whole, as well as the back­ground ma­te­rial.”

The party says in terms of sec­tion 47 (1) of the Act, it is a po­lit­i­cal party con­test­ing pro­por­tional rep­re­sen­ta­tion elec­tions that nom­i­nates and sub­mits a list of nom­i­nated can­di­dates to the IEC.

“A de­ci­sion on who should be in the list is made solely by the po­lit­i­cal party con­cerned.”

In terms of sec­tion 55 read with sec­tion 104 of the Act, the BNP says af­ter con­stituency votes have been de­clared, the IEC con­verts con­stituency can­di­dates’ votes into na­tional po­lit­i­cal party votes. Then and us­ing the pre­scribed for­mula, po­lit­i­cal par­ties are al­lo­cated their share of the 40 pro­por- tional seats based on their pop­u­lar vote, it ar­gues.

“Your Pe­ti­tioner avers from the read­ing of the above pro­vi­sions, and in keep­ing with the spirit of the MMP elec­toral sys­tem, that the 40 PR seats are al­lo­cated to po­lit­i­cal par­ties that par­tic­i­pated in the pro­por­tional elec­tions. In the cir­cum­stances, a can­di­date elected to the Na­tional As­sem­bly un­der pro­por­tional rep­re­sen­ta­tion re­tains his/her seat as long as he/she rep­re­sents and ex­e­cutes the man­date of a po­lit­i­cal party al­lo­cated the seat in is­sue.

“Your Pe­ti­tioner avers fur­ther that the re­stric­tive read­ing of sec­tion 188 (3) of the Act by the 1st Re­spon­dent of­fends the spirit of the MMP elec­toral sys­tem and leads to an ab­sur­dity that a mem­ber may re­tain a seat in the Na­tional As­sem­bly even when he/she does no longer rep­re­sents the in­ter­ests of a party that has been al­lo­cated the seat un­der pro­por­tional rep­re­sen­ta­tion.

Adds the party: “Your Pe­ti­tioner sub­mits that the in­ten­tion of Par­lia­ment in sec­tion 188 (3) is that a mem­ber should va­cate his seat if he/she no longer rep­re­sents the in­ter­ests of a po­lit­i­cal party that has ac­tu­ally been al­lo­cated the seat. Oth­er­wise, it would be ab­surd that a mem­ber who will­ingly leaves a po­lit­i­cal party should va­cate a seat but a mem­ber ex­pelled from the po­lit­i­cal party should re­tain his seat.

Whether a mem­ber will­ingly or un­will­ingly leaves a po­lit­i­cal party, the end re­sult is the same; he/she is no longer a mem­ber and an agent thereof and can thus not be ex­pected to rep­re­sent the in­ter­ests of a con­cerned po­lit­i­cal party.”

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