BNP court pe­ti­tion set for De­cem­ber

Lesotho Times - - News - Tefo Tefo

THE High Court will on 2 De­cem­ber 2016, hear a case in which the Basotho Na­tional Party (BNP) wants the court to al­low the dis­missal of its two for­mer mem­bers, Mrs ‘Makhotso Matšu­mun­yane and Mr Le­so­jane Leuta from the Na­tional Assem­bly.

“The case has been set for ar­gu­ment on the 2nd of De­cem­ber this year and it will be heard by Her Lady­ship Jus­tice (‘Mase­shophe) Hla­joane,” the High Court’s As­sis­tant Reg­is­trar Stafford Sharite said yes­ter­day.

The BNP lodged a pe­ti­tion in the High Court 12 Septem­ber 2016, seek­ing 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 from the party.

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

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 “in or­der of pref­er­ence as mem­bers of the Na­tional Assem­bly.”

Sec­tion 188 (3) of the Na­tional Assem­bly Elec­toral Act of 2011 states that a mem­ber of the Na­tional Assem­bly al­lo­cated a seat by 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 on 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 allo- cated their share of the 40 pro­por­tional 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.

The BNP also sub­mits that in terms of sec­tion 188 (3), a mem­ber should va­cate their seat if they no longer rep­re­sent the po­lit­i­cal party that has ac­tu­ally been al­lo­cated the seat. The BNP con­tends that 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 the 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,” reads part of the pe­ti­tion.

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