Basotho National Party and Others v Government of Lesotho and Others (Constitutional Case No.4/2002 )

Media Neutral Citation: 
[2003] LSHC 65
Judgment Date: 
10 June, 2003


Constitutional Case No.4/2002


In the Matter Between:






















Reasons for Judgment

Hlajoane J

Coram: Mofolo J

Hlajoane J

Nomngcongo A.J

This Application was argued before us on the 9th and 10th June, 2003 and we dismissed the Application and intimated that reasons would follow. These now are the reasons.

This constitutional case was launched before this Court on 31st October, 2002. It's an application whereby applicants applied for an order in the following terms:

1. That the general elections held on the 25th and 26th May, 2002 be declared unconstitutional or unlawful, and the results thereof be set aside as null and void.

2. The order made in accordance with paragraph 1 above shall be suspended pending the holding of a general election, to be called and held, subject to paragraph 5 below, in accordance with the Constitution of Lesotho and the National Assembly Election Order, No.10 of 1992 (as amended) within 15


months of the date of this Order, or a period to be specified by the Court.

3. The Interim Political Authority Act, No.16 of 1998 (the "Act"), is declared of full force and effect; the Interim Political Authority ("IPA"), created thereunder is re-established, under the terms and conditions set forth in the Act; and all references therein to an election or elections shall be deemed to be to the General Election to be held in accordance with paragraph 2 above.

4. The IPA will be funded with moneys from the consolidated fund, as provided for in the Act, and any IPA funding request shall be paid within a reasonable time of due presentation thereof of the appropriate authority.

5. The National Assembly Elections (Amendment) Act 2001, the fourth Amendment to the Constitution Act No.4 of 2001 and the National Assembly Election (No.1) Amendment Act, 2001 are declared unconstitutional or unlawful and of no force and effect.

6. The Executive Branch of Government of Lesotho and all political parties and candidates who will participate in the General Election to be held in accordance with Paragraph 2 above shall be strictly bound to observe the Act, and, without derogating from the generality of the foregoing, in particular sections 14 and 1 5 thereof respectively.

7. In order to facilitate speedy implementation of s. 6 (d) of the Act, the incumbent members of the IEC will vacate their offices within 30 days of the


date of this order, preparatory to which the IPA will make recommendations to the relevant public institution regarding the structure and functions of the IEC, including recommendation as to the manner of the appointment of new members thereof.

8. All domestic signatories thereto shall be strictly bound to observe:

8.1 The memorandum of Agreement signed on 2nd October 1998, by the major political parties, and by representatives of South Africa, Botswana, Mozambique and Zimbabwe;

8.2 The memorandum of Agreement signed on 14th October 1998, by the major political parties, and by representative of South Africa, Botswana, Mozambique and Zimbabwe;

8.3 The memorandum of Agreement signed between the Government and the IPA on 3rd December 1999, and signed by the Commonwealth Secretary-General and the Presidents of South Africa, Botswana, Mozambique and Zimbabwe as "Guarantors".

8.4 The Arbitration Tribunal award dated 17th October 1999, pursuant to the IPA submission of 8th October 1999.

9. Further and /or alternative relief.


10. The costs of this Application, including the costs of two counsel, shall be paid by the first and second Respondents, and by such of the other Respondents who oppose the application, jointly and severally, the one paying the other to be absolved.

The Application was opposed by the first, and second, eight and eleventh Respondents, and the eight Respondent deposed to an affidavit on behalf of the first, second and also on his own behalf. In support of that opposition, supporting affidavit of the Prime Minister, the Hon. Mr Pakalitha Mosisili was filed. Further supporting affidavits by Messrs 1... Thoahlane, the Chairman of i£C and Mr M. Likate, the Commissioner of the IEC were also filed. The IEC however abides the decision of this Court. These opposing papers were filed on the 19th December, 2002, thus giving the Applicants ten Court days within which to file their replying papers, if so advised.

The Applicants decided not to file their Replying affidavits, thus leaving the allegations in the answering papers stand unchallenged. As if that was not enough, the Applicants also failed to place the matter before the Court within five days as required by Rule 1 1 (7) of Constitutional Litigation Rules. Instead, the Respondents took the liberty of requesting the Registrar to place the matter before Court in terms of Rule 11 (8).

After the Application had been set down for hearing, the Applicants wrote to the Registrar indicating that they had decided not to persist with the application. The letter was copied to the Respondents. Following that letter, a notice of withdrawal was also filed. The Applicants had stated in their letter that they were adopting that


course as they believed that they were not going to be afforded a fair hearing in the Courts of Lesotho. In their withdrawal letter there also was a tender for costs.

The Respondents argued that because the Application had already been set down for hearing, the Applicants could not therefore unilaterally withdraw the Application, but could only do so with the consent of all parties concerned or with the leave of the Court. The Respondents therefore refused to accept the notice of withdrawal and this was duly communicated to the Applicants.

Given the importance of the issues raised in the Application, not to mention the challenges to the validity of the 2002 election, the constitutionality of various Acts, including of course the legislation amending the Lesotho Constitution, it was submitted by the Respondents that the Court had to consider and make a ruling on the issues raised, in the public interest.

The withdrawal Application was argued before a full bench on the 14th March, 2003, and the following order was made:

- that the Applicants' notice of withdrawal was refused

- that the Respondents be awarded costs incurred in opposing the withdrawal of the Applications on an Attorney and client scale, and

- that the matter be set down for argument from 12th to 16th May, 2003.

Because the Court was not fully constituted on the week beginning 12th May 2003 as one Judge was away on official business, the case was postponed to the 9th June, 2,003 for argument. It is worth mentioning that when the matter proceeded on


the 9th June the Applicants made no appearance, either in person or through their counsel, and the case proceeded in their absence.

The withdrawal was refused mainly because the averments made were so far reaching and have received so much publicity that they deserve a careful consideration.

Allegations complained of in the Applicants' founding affidavit largely concerned events that occurred before and after 1998 general elections and prior to the 2002 election, and all not being directly relevant to the relief sought in this Application. The Respondents' version must therefore be accepted, Plascon -Evans Paints Ltd vs Van Riebeeck Paints (Pty) Ltd 1984 (3) S.A 623 at 635 (c).

The notice of withdrawal by the Applicants was refused as it was not filed by agreement with the Respondents in terms of Rule 17 of Constitutional Litigation Rules which read;

"17 Where the parties to a case, at any stage of the proceedings, lodge with the Registrar an agreement in writing that (the) case be withdrawn, specifying the terms relating to the payment of costs and payment to the Registrar of any fees that may be due. the Registrar shall if the Presiding Judge so directs, enter such withdrawal."

On looking at the proper construction of Rule 17 above, it is clear that one party cannot withdraw the proceedings without the consent in writing of the other parties. In this case therefore, Applicants notice of withdrawal is declared irregular and ineffective and cannot be entertained because the Respondents neither agreed or


consented to the withdrawal.

The Rule further makes mention of the decision to be made by the Presiding Judge. The Presiding Judge will only exercise his discretion where already there is an agreement in writing between the parties concerned. The Court had a discretion to accept or refuse the withdrawal. See Mathaba & Others v Lekema & Others 1993-94 LLR 402.

Given the nature of the allegations in this application, which are of considerable public importance as they involve not only the challenge to National Assembly Election Order of May 2002, but also the striking down of Election Legislation and the further challenge to the very independence of the Lesotho Judiciary as a whole, the Applicants cannot be allowed to achieve their ultimate goal, applicants goal being the submission of the alleged disputes not to the Lesotho Judiciary but to some international adjudication.

Moreover, the notice of withdrawal in this case was conditional as they clearly pointed out that they were withdrawing in order to enable them to raise those issues again in "International Human Rights Commission/Committees for final adjudication." This was expressly disallowed by the Lesotho Court of Appeal in the case of Swissbourgh Diamond Mines v Commissioner of Miners 1991 - 96 LLR Vol. II 1667 at 1671-72.

The Court felt that if the withdrawal was allowed just like that, the integrity and independence of the judiciary will be jeopardised. This would be more so because


Applicants have made serious allegations concerning various constitutionally important bodies including the Council of State, the Chief Justice, the Judiciary and the Independent Electoral Commission. The interpretation of international conventions is raised as well as their applicability in Lesotho. Various important bodies have also been made Respondents, as the President of the Senate, the speaker of the National Assembly and the Council of Senate. It would therefore be in the public interest that averments made be heard and decided, otherwise members of the public are going to cast some doubts on all those mentioned bodies particularly the Judiciary.

As can be noticed from papers filed of record, the Applicants have not quite expressly motivated why they are allegedly entitled to the relief as set out in their notice of motion. They have restricted their legal contentions to the first of the prayers contained in the notice of motion. The founding affidavit has not explained why this Court is entitled to revive the IPA Act which lapsed a long time ago or why re-establish that defunct body, IPA. They have also not explained why the Constitutional amendment and legislation amending existing statutes should be declared unconstitutional and unlawful, or why the Court should order the incumbent members of the IEC to vacate their offices within seven days.

According to the second Applicant, in his founding affidavit, Applicants are asking that the 2002 Election be declared unconstitutional and the results thereof set aside as null and void, by reason that, "IPA whose assigned constitutional role was to establish the basis for the election was prevented from performing its function, and the election was held instead on a basis contrary to the directions of the IPA."


And in support of this assertions, eight submissions are advanced:

- "the 2002 Election was not held in accordance with the electoral system devised by the IPA and the decision of the Arbitration Tribunal regarding the nature of the representation provided for in the electoral model:"

- the 2002 Election "was held outside the 18 month time frame agreed upon for new elections:"

- the IPA "was under the de facto constitutional amendment embodied in the IPA Act. the sole body constitutionally authorized to establish a new electoral system, yet IPA was purportedly systematically undermined and ultimately entirely marginalised by the Government;"

- the electoral system established by Parliament and administered by the IEC, and used to govern the 2002 Election, was illegitimate and unconstitutionally adopted because the LCD, as the Party overwhelmingly dominant in Parliament, allegedly failed to comply with its obligation under the IPA Act to implement decisions of IPA;

- by purportedly marginalising the IPA and rejecting its authority to establish the basis for fresh elections, the Government allegedly repudiated "its solemn undertakings, embodied in the October and December 1999 Agreements and in the IPA Act, whereunder Parliament surrendered (or shared) its sovereignty with respect to the establishment of a legitimate structural and institutional basis for the new elections'1.

- Even if the IPA is not deemed a de facto constitutional amendment.


"Parliament bound itself thereby or must be deemed to have bound itself thereby, to implement the decisions of the IPA and was not competent to negate the provisions of the IPA Act;"

- "The Executive "which, likewise was expressly and unconditionally

obliged by the IPA Act to implement the decisions of the IPA". purportedly failed to do so:

- the alleged "marginalisation of the IPA and the consequentially defective registration process, and electoral fraud, were in violation of the right to participate in Government, as enshrined in the

Constitution of Lesotho."

As can be seen from the Applicants' summary of legal submissions, apart from the allegations relating to the violation of the right to participate in Government, Section 20 of the Constitution, which also is unsustainable on the facts, the constitutional challenge depends on a de facto Constitutional amendment being found to have been effected by the passing of an ordinary statute, the IPA Act. This is an extraordinary contention, which runs counter to fundamental constitutional principles, as well as the provisions of the Constitution.

It is equally far fetched and contrary to fundamental constitutional principles and the provisions of Lesotho's Constitution, that, even if there was no such de facto constitutional amendment, Parliament by passing the IPA Act, vested its legislative sovereignty in election matters in the IPA, and thus fettered its future legislative powers in relation thereto.


ln order to demonstrate the deficiencies in the Applicants' arguments the Respondents devoted attention to the relevant provisions of the Constitution, the National Assembly Election Act and the IPA Act. But before going into that area, Respondents' defences in limine as alluded to in their answering papers are to be dealt with.

Non-joinder and non-compliance with sections of the Constitution and the National Assembly Election Act

The Applicants dispute the validity of the 2002 Election in toto. Consequently, the validity of the election of all 120 members of the National Assembly is being impugned, and as such section 69 (1) (b) of the constitution is directly applicable. Not only have they not complied with the provisions of the constitution, but also section 100 of the National Assembly Election Act 1992 (as amended).

Section 100 provides that, "the power to determine questions in an election petition, relating to membership of the National Assembly is, in accordance with Section 69 of the Constitution, vested in the High Court." Sections 101, 102, 103 and 104 of the National Assembly Election Act are also relevant and applicable.

The Application ought to have been lodged within 30 days after the end of the Election period, section 102 (a) of the National Assembly Election Act. The Election for 2002 were held on 25 and 26 May 2002, while the election results were published on 4th June, 2002. The thirty day period provided for in section 102 of the National Assembly Act expired at the beginning of July 2002. The Application was brought


al the end of October 2002, some four to five months alter the elections.

Moreover, none of the persons who stood for and were elected to the National Assembly in the said Elections have been cited as parties to the Application as required by section 103 (3) of the national Assembly Election Act 1992. It remains questionable whether the first Applicant, the BNP can mount such a challenge, not being a person envisaged by section 69 (3) of the Constitution, but conceded that second Applicant would be entitled to do so.

This was not only a breach of that section, but also of the common law rules of joinder. On account of having a direct and substantial interest in the relief sought, each of those persons was a necessary party to the application, and the orders prayed for could not be sustained or carried into effect without prejudicing those persons. See BCP and 2 Others v Director of Elections and 2 Others 1997/1998 LLR 518 at 531 also Amalgamated Engineering Union v Minister of Labour 1949 (3) S.A 637 at 659.

Even where section 69 of the Constitution might not be thought to be applicable in the present application, the same fate of the application being dismissed should in any event befall this application. This would be as a consequence of the common law provision of joinder and the applicants failure to join necessary parties to the application, namely the successfully elected candidates.


Unreasonable Delay

It is apparent that the complaints raised by the applicants all relate to facts or events that existed before 2002 Election, and which were known to the applicants at the time as were represented on the IPA. This becomes even more apparent from a survey of the dates of the documentation upon which the applicants rely in support of their contentions. To mention but some such letters; IPA wrote a letter to SADC group on 22nd February, 2000 (annexure L), another letter was again written on the 14th March 2000 (annexure M), another letter was written to President Mbeki on the 14th February, 2001 (annexure P) and many more.

There seems to be no reason why an application based on the allegations in the present matter could not have been brought before the 2002 Election with a view of preventing the allegedly flawed election from taking place. The declaratory relief sought as well as the reviewing and setting aside of the 2002 Election results and the granting of various interdicts, are all discretionary remedies. The Court has a discretion to decline to grant such because of consideration of justice or convenience. One of the factors amongst the many, that may be considered in regard to this is the question of undue delay.

In fact, the fact that an Applicant has delayed in bringing a review application had long been held to be a basis on which a review can be dismissed, irrespective of the merits of the Application. See Lion Match Co Limited v Paper Printing Wood and Allied Workers Union and Others 2001 (4) S.A 149 at 156 - 158. Also Magetoane v Minister of Interior and Other 1985 - 89 LAC 71 at 75. It is


incumbent upon the applicant to explain the delay in its founding affidavit, Scott and Others v Hanekom and Others 1980 (3) S.A 1182 at 1193.

Under the circumstances the Court in the exercise of its discretion, in the light of the unexplained delay and the prejudice occasioned thereby, will dismiss the application.

The Constitution

From the papers filed, it is apparent that the applicants' case is premised on a de facto amendment to the Constitution or the circumscription of the Parliament's legislative powers in relation to elections. All these are contradicted by the provisions of the Constitution as well as the National Assembly Election Act 1992 and the IPA Act 1998. Lesotho being a Constitutional State, all state power and actions together with its legislation must therefore be consistent with the Constitution.

Section 2 of the Constitution declares the Constitution as the Supreme Law. It reads:-

"This Constitution is the Supreme Law of Lesotho and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.."

The legislative and executive power as well as Judicial power is bestowed respectively by sections 70, 86 and 118 of the Constitution. We find similar Provisions in this respect in the Constitutions of the Republic of South Africa 1996 and also that of the Republic of Namibia, 1990.

The Lesotho Constitution also regulates the composition and election of the National Assembly. Prior to the enactment of the fourth Amendment to the Constitution Act No.4 of 2001, published in the Government Gazette Extraordinary of 15th March 2001, Section 56 of the Constitution provided that the National Assembly shall consist of eighty (80) members elected in accordance with the provisions of the Constitution. This section was amended to provide for 120 members in the National Assembly. Section 57 deals with elections to the National Assembly so that the legislation envisaged by the Constitution is the National Assembly Election Act.

It was in July 1997, pursuant to the Second Amendment to the Constitution, Act No.7 of 1997, when the Constitution was amended so as to provide for the IEC and its composition, its powers and functions, as well as to abolish Constituency Delimitation Commission and the office of the Chief Electoral Officer. The Constitution expressly confers power to supervise, control and manage Elections on the IEC. The Commission's independence is guaranteed. There is a similar provision in the South African Constitution under section 181 (1) (f). See New National Party v Government of the Republic of South Africa & Others 1999 (3) S.A. 191 (cc). There is no mention in the Constitution of the IPA, nor are the powers, functions or responsibilities of the IEC qualified in anyway with reference to IPA. The alteration of the Constitution is governed by Chapter VII of the Constitution, see Section 85 thereof. But the Constitution notably makes no provision for any "de facto Constitutional amendment11 or any other informal or implied variation of the Constitution.


There is no mention or reference to the IPA even in the National Assembly Election Act, 1992, nor is there a provision for the IPA to assist the IEC in its constitutional and statutory functions relating to the elections. It is a well known fact that IPA arose out of an agreement between four (4) political parties and representatives of four SADC countries. The Act ultimately became the product of Parliament.

Section 4 of IPA Acts sets out the objectives of [PA:

"Shall be to facilitate and promote in conjunction with the Legislative and Executive Structures in Lesotho, the preparation Tor holding of general elections to be held within a period of 18 months from the date of commencement of this Act......"

The functions are listed from Para (a) to (h). But none of those functions expressly relate to the kind of electoral system that is to be employed in Lesotho, nor even to the method of registering and identifying electors. Though the IPA is by and large confined to, and in recommending changes to the relevant public bodies in order to facilitate free and fair elections, in terms of section 14 of the IPA Act, the Executive is, however, obliged to implement decisions of the IPA, while, on the other hand. IPA decisions shall be binding on all political parties, section 15. But there is no similar constraint imposed on Parliament, whose power to pass laws or amend the Constitution and existing legislation is not limited by decision of the IPA.

Had the IPA considered it necessary to change the Constitution in order to enable it to attain its objectives, it should have done so, as envisaged in section 6 (f) of the IPA Act. In the absence therefore of any such formal constitutional amendment, the IPA had no such constitutional authority as its powers and functions


were limited by the dictates of the Constitution.

There is an alternative submission advanced by the Applicants that Parliament is bound or must be deemed to have bound itself, to implement the decisions of the IPA. The allegation is not borne out by the Provisions of the IPA Act. The Act nowhere states that Parliament shall be obliged to implement decisions of the IPA. Parliament is the Legislature and not the Executive.

The Applicants' case is primarily centred around challenging the 2002 Election on the basis of a purported failure to give effect to the decisions of the IPA and arbitration tribunal. The Respondents case on the other hand is that the issue should not be whether the 2002 Election was held in accordance with the recommendations and or decisions of the IPA and the arbitration tribunal, but whether there has been compliance with the prevailing legislative and constitutional requirements.

It has been the Respondents response that, in any event, the IPA's recommendations had not been disregarded as before the 2002 Elections were held all the role players agreed to the rules under which the Election would be run. No one challenged them as they had been agreed to by all. The IPA was established specifically to facilitate and promote the 2002 Election not to regulate future elections. The Preamble of the Act reads:

"An act to establish an authority to facilitate and promote the preparation for the holding of the next general elections and for connected purposes." (My own emphasis)

To emphasise this point further, on the reading of Section 22 of the IPA Act one


learns that, the Act was truly meant for the 2002 Election only. Section 22 reads;

"This Act shall lapse one day after the declaration of the results of the next general elections."

This means that the body or office ceased to exist a day after the pronouncement of the results of the 2002 Election. So that the Court would be acting ultra vires its powers if it were to declare the !PA to be still in full force and effect after the declaration of the election results.

On the question of holding the elections outside the agreed 18 months time frame, it will be remembered that the agreement referred to by the Applicant is the memorandum signed by four political parties and representatives of four SADC countries. On the proper reading of that agreement, one cannot say that there is any express reference to the 18 months period. It was also clear that the final decision of the IPA rested with Parliament. The delay was caused primarily by the negotiations which also included the 1PA, they were never locked outside at any stage. The delay therefore in holding the 2002 Election is no cause for a constitutional challenge.

Given also, that the decision as to when general election for the National Assembly will be held, must, in terms of the Constitution, be made by the King, it follows therefore that the leaders of the major political parties, including the Prime Minister, could not constitutionally commit themselves to an election being held at any particular time. It follows therefore that any agreement that purported to embody such an undertaking would consequently be invalid and unenforceable.


As a long established principle, the state or Government cannot fetter its future executive action, for to do so would limit its discretion to act for the public good; Fellner v Minister of the Interior 1954 (4), S.A. 523 at 535 H.

The other submission by the Applicants has been that, because of the marginalisation of the 1PA, the consequentially defective registration process and electoral fraud, there was a breach of the right to participate in government - a right enshrined in section 20 of the Constitution. There is absolutely no merit in the whole of this contention. By way of illustration 1 will refer to the similar provision to our section 20, which is in South Africa contained in their section 19 of the Constitution of the Republic of South Africa, 1996.

The South African Constitutional Court held in the case of New National party of South Africa v Government of the Republic of south Africa 1993 (3) S.A 191 that,

'"Some means of easy and reliable identification is necessary to facilitate the process of registration and voting, and that regulation of the exercise of the right to vote (by means of. for example, introducing a system for identification and registration of potential voters) is not unconstitutional as long as it is rationally related to a legitimate government purpose and does not impair the right to vote.

There is also no merit in the allegations that the IPA's proposal for the use of the Automated Fingerprint Identification System ("the AFIS system") were sabotaged by the LCD, and that Government prevented the implementation of the system under the pretext of funds. Also that the IEC ultimately announced a different system of registration, without consulting the IPA.


Because the British Government had not undertaken to fund the entire costs of the "voter registration approved by the IPA", it was decided, after considerable investigation (including the conducting of a feasibility study) and extensive registration method, that the AFIS system was far too expensive and impartial. This system was subject to the technology in question being shown to be viable, which ultimately was found not to be the case.

It would be worth noting that, of the many petitions against the results of the 1998 elections that were lodged with the Court, not a single one was successful.

The Applicants have also alleged a failure to comply with various supra-national and regional declarations or charters, but have not indicated what principles in these documents are purportedly relevant. They have not even given us a clue as to the Chapters or Sections on which they intended to rely. Besides, there is also no allegation that such declarations or charters in question have been ratified or acceded to by the Lesotho Government. The problem may have been exacerbated by the fact that some words appear to have been omitted from the passage in which the allegations in question are advanced, but there has been no explanation about the . omission or anything from the Applicants.

Also worth noting is the fact that International, Supra-national or regional covenants or charters are only relevant in so far as the executive and legislature are concerned, to the extent that Lesotho might have agreed to be bound thereto and the international treaties in question must be consistent with the Constitution. Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa 1996


(4) S.A 671.

Because the question of whether or not the Applicants' contentions are consistent with the Lesotho Constitution is answered in the negative, the Application can therefore not succeed.

The Application is thus dismissed with costs, including the costs consequent upon the employment of two counsel. The order should read:-

- The Application is dismissed with costs, including, in the case of 1st, 2nd - 8th Respondents, the costs of two counsel.

- Notwithstanding the provisions of Rule 55, the taxing master shall allow such fees and expenses of counsel for the Respondents as she considers reasonable, having regard to all the circumstances, including the fees counsel have marked on their briefs.



I concur




1 concur



For Applicants: Mr Phoofolo

For 1st, 2nd-8th Respondents: Mr Viljoen SC

For 11th Respondent: Mr Phafane