A new judgment by Lesotho’s high court has left the country’s Independent Electoral Commission in a quandary: how to satisfy election timetables at the same time as fixing invalid constituency delimitations so that they fall within the bounds of the constitution.
On July 19, the Independent Electoral Commission (IEC) officially published a notice proclaiming October 7 as the election date. But a new decision of the high court, sitting as a constitutional court, has made clear that the current delimitation of constituencies is not constitutional, and they must be redrawn before any election can be held.
For the parties that brought the challenge, the court result is a victory. But it presents an enormous difficulty for the IEC which must now decide how to proceed, and even whether to challenge the outcome on appeal, thus potentially delaying any corrective measures – and the elections – even further.
The case dealt with several complaints about the current situation. Ultimately, however, the court’s problem was that the IEC quota for constituencies did not comply with the proportions stipulated in the constitution.
The key issue is that the constitution requires constituencies to be as close in numbers to each other as possible. In particular, it states that no constituency should ‘exceed or fall short of the population quota by more than ten percent’.
‘This is the red line that the IEC should not cross,’ said the court. ‘There is no room for justification for non-compliance with the proviso which is carefully crafted to delineate the parameters of what is permissible and what is not.’
According to the applicants, the IEC delimitation exercise resulted in constituencies that ranged beyond the 10 percent variation permitted by the constitution.
The IEC, for its part, said that the population quota number was 15,507. Applying an upper and lower limit of 10 percent meant that constituencies could range between 17,058 and 13,956. However, in 20 of the 80 or so constituencies, the voter numbers were ‘either below or above the population quota by more than 10 percent’. While the IEC conceded that this was so, it tried to justify the non-compliance in the 20 constituencies.
Among the reasons given by the IEC for the higher or lower number of voters was the difficult terrain in some constituencies, the ‘inaccessibility of services, population sparsity, community conflicts and proximity of employment’. However, the court pointed out, all these reasons had been taken into account by the constitution, which said, in mandatory language, that despite such conditions, the 10 percent threshold still had to be observed.
‘This indicates that a red line has been drawn by the constitution that dare not be crossed,’ said the court.
‘Crossing it is a breach of the constitution as the supreme law of the land’, and the ‘imperatives of the rule of law’ demanded that crossing the red line led to actions being declared null and void. ‘Therefore, the court does not accept that the justification by the IEC is constitutionally permissible.’
The only part of the constitution providing for limitations was found in the Bill of Rights which allowed limitations on certain fundamental rights. Beyond that, however, ‘the constitution does not brook any justification for its breach.’
The court recognised that reviewing and setting aside the delimitation order in the 20 non-compliant constituencies would cause other constitutional problems. For example, those who had registered to vote in the 20 problem constituencies would be denied the right to vote and would thus effectively be disenfranchised. If elections did not take place, however, a new national assembly could not be formed, no new laws could be made and there would be no new government. ‘Our democratic project will be in serious danger of collapse.’
However, if elections were held to avoid these consequences, there would be some constituencies represented in the national assembly that were ‘not constitutionally in order.’ ‘The integrity of the democratic process will be questioned and democracy will slowly erode.’
If the IEC were to hold elections based on constitutionally flawed constituencies, this would be a ‘subvention of the principle of voter parity and equal representation’.
If there were a delay in holding elections to ensure that constituencies were constitutionally compliant, this did not mean that there would be no government, for there can ‘never be a vacuum,’ said the judges. They went on to give a clue as to a possible measure to take: ‘If necessary, the current government should hold fort until all constituencies can hold elections.’
Going ahead with elections before the problem was corrected would amount to ‘conducting elections on the basis of legally flawed constituencies, thereby desecrating the constitution,’ the judges said.
If the court were simply to sever the 20 non-compliant constituencies and declare the delimitation invalid, this still did not mean that a valid election could be held in the rest of the country.
The IEC should, however, chase the promulgated 7 October election date, said the court.
In conclusion, it formally declared the delimitations in the 20 disputed constituencies unconstitutional and set aside the legal notice proclaiming the delimitations.
The result may have been met with jubilation by the parties that brought the case to court, but it’s far from clear what will happen next, particularly since changes to the boundaries of the problem constituencies will inevitably affect the rest. Some of those involved have even questioned the role of the court in the matter, saying that while the matter had been filed in the court on 18 May, in their view, it had not been given the obviously urgent treatment it deserved, only being heard on 20 and 21 July, and delivered on August 8.
* 'A matter of justice', Legalbrief, 16 August 2022