United For Change V The Speaker of the National Assembly (CIV/PET/0001/2024) [2025] LSHC 1 (4 February 2025)

 

 

 

 

 

IN THE COURT OF DISPUTED RETURNS

 

HELD AT MASERU                                        CIV/P/0001/2024                                          

In the matter between:

UNITED FOR CHANGE                                                       1^ST PETITIONER

‘MALICHABA LEKHOABA                                              2^ND PETITIONER

AND

THE SPEAKER OF THE NATIONAL

ASSEMBLY                                                                                           1^ST RESPONDENT

THE HON. MR MOHLOMINYANE

TOTA                                                                                                               2^ND RESPONDENT

INDEPENDENT ELECTORAL

COMMISSION                                                                                       3^RD RESPONDENT

THE ATTORNEY GENERAL                                                 4^TH RESPONDENT

                                                                       

 

Neutral Citation: United For Change and Another v. The Speaker of the National Assembly & Others [2025] LSHC 1 Pet (03 February 2025)

 

CORAM:  S.P. SAKOANE CJ, M. MOKHESI AND N.G. HLAELE JJ

 

HEARD:           03 DECEMBER 2024

DELIVERED:   04 FEBRUARY 2025

 

 

SUMMARY

Parliamentary practice ⦁ Floor crossing ⦁ Whether a Member of the National Assembly elected on proportional representation crosses the floor and vacates seat when he switches seats from the Government side to the Opposition side without defecting to another political party ⦁ Floor crossing happens when an MP defects to another political party ⦁ National Assembly Electoral Act, 2011 section 188 (3).

 

ANNOTATIONS

CASES:

 

Lesotho:

 

Basotho Democratic National Party v. Independent Electoral Commission and Others LAC (2015-2016) 367

Molapo & 4 Others v. Seeiso (1963-1966) H.C.T.L.R 150 (B)

 

India:

Kihoto Hollohan v. Zachillhu [1992] 1. S.C.R. 686

 

South Africa:

In RE CERTIFICATION OF THE CONSTITUTION OF THE RSA 1996 (4) SA 744

UDM v. Speaker of the National Assembly 2017 (8) BCLR 1061 (CC)

 

 

 

 

Statutes:

Constitution of Lesotho, 1993

National Assembly Electoral Act No. 4 of 2011

Parliamentary Powers and Privileges Act No. 8 of 1994

 

Books:

A.C. Grayling (2017) Democracy and Its Crisis (Oneworld)

Brewer’s Dictionary of Phrase & Fable 18^th Edition

Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament 21^st Edition

J.A.G. Griffith and M. Ryle (1989) Parliament: Functions, Practice and Procedures (Sweet & Maxwell)

Oxford English Dictionary 8^th Edition

R. Brazier Constitutional Practice 3^rd Edition

 

 

 

 

 

 

 

JUDGMENT

SAKOANE CJ:

I. INTRODUCTION

[1]    In this petition, the petitioners (United For Change (UFC)) and its leader, seek the following substantive orders against its Member of Parliament (2^nd respondent) and the Speaker:

“(d)      An order reviewing, correcting and setting aside as irregular and void ab initio, the decision or ruling of the Speaker of the National Assembly dated 19 February 2024 titled ‘Distinction between Floor Crossing and change of seat in the House’.

(e)        A declarator that the migration of 2^nd Respondent from the Government side/seat to the Opposition side/seat on 19 February 2024 constituted floor crossing.

(f)        An order declaring that the seat of 2^nd Respondent (Mohlominyane Tota MP) in the National Assembly has become vacant.

(g)        An order directing the Speaker of the National Assembly to appoint, as a member of the National Assembly, the next person on the 1^st Petitioner’s proportional representation list in order of preference in terms of sections 189 (2) and (3) read with section 51 of the National (sic) Electoral Act, No. 4 of 2011 to fill up the seat vacated by 2^nd Respondent.

(h)        That Your Petitioners be given further and/or alternative appropriate relief.

(i)        Costs of suit.”

 

[2]     The MP (Mohlominyane Tota) opposes the petition.  The Speaker and the Independent Electoral Commission (IEC) have not entered appearance.  The Attorney General informed the Court that he abides its decision.  So the battle is between the political party supported by its leader and the MP.

 

[3]     The impugned conduct of the MP and the ruling of the Speaker thereon are matters of record in the Hansard.  The parties are on common ground that the contents of the Hansard are a true reflection of the goings-on in the National Assembly.

         

II. MERITS

     Common cause facts

[4]     From a perusal of the allegations in the petition and averments in the opposing affidavit, the battling parties are on common ground that[1]:

⦁          following the General Elections held on 7 October 2022, UFC was allocated one proportional representation seat by the IEC and the 2^nd respondent appointed as its MP;

⦁          UFC instructed the MP to sit on the side of Government and support it;

⦁             the MP agreed with the qualification that he would do so “as long as it [Government] acted properly in my assessment”;

⦁          on 8 February 2024 the MP wrote a letter (Annexure “C”) to the Speaker notifying him of his intention to move from his seat “to a seat I deem as comfortable”;

⦁          on 19 February 2024, the Speaker gave a ruling that the MP had indicated that he is not crossing the floor and, being the sole member of UFC, he has the right to choose where to sit, whereafter, the MP moved to sit on the side of the Opposition;

⦁          on 8 March 2024, the National Executive Committee of UFC resolved that by changing seats, the MP had crossed the floor and, thereby, vacated its proportional representation seat.

 

[5]     In a scenario where the alleged facts in a petition[2] are not in dispute, proof by oral testimony is dispensable.  As aptly put by the Court of Appeal in BDNP[3]:

 

“[32] ...Here the allegations made by the petitioner are not challenged and, as I have said, the opposition to the petition is based in the main on legal contentions advanced in the affidavit filed on behalf of the first respondent and the notice to raise points of law filed on behalf of the second, 89^th and 90^th respondents in terms of rule 8 (10) (c).  It is also to be remembered that oral evidence is not always led in a trial in the High Court, as the rules relating to trials provide for cases to be dealt with by way of the special case procedure (see rule 32).

[33] In my view the appellant’s contention that oral evidence had to be led on the merits is answered by s 127 (2) of the Act, which, it will be remembered, provides that the Court of Disputed Returns[4] must be ‘guided by the substantial merits of the case without regard to legal form or technicalities.’

[34] No point would be served (but a lot of money and time would be wasted) by requiring oral evidence to establish facts which were not in dispute.

[35] I am, accordingly of the view that the Court a quo did not err in not requiring or permitting oral evidence to be led on the merits.”

 

 

Legal frameworks

[6]     The High Court (sitting as a Court of Disputed Returns), is seized with the petition in terms of section 69 (1) (c) of the Constitution read with the following provisions of the National Assembly Electoral Act, 2011:

          6.1     Section 190 (1) and (2)

          6.2     Section 125 (b)

          6.3     Section 126 (3)

          6.4     Section 188 (3)

          6.5     Section 189 (2)

 

[7]     Section 69 (1) (c) and (4) of the Constitution read as follows:

“(1) The High Court shall have jurisdiction to hear and determine any question whether –

1. - - - -
2. - - - -
3.  the seat in Senate or the National Assembly of any member thereof has become vacant.

- - - - - -

(4) An application to the High Court for the determination of any question under sub-section (1) (c) may be made by any member of the National Assembly or by any person registered as an elector in elections to the National Assembly [or by a political party which participated in the elections[5]] or by the Attorney-General and, if it is made by a person other than the Attorney-General, the Attorney-General may intervene and may then appear or be represented in the proceedings.”

 

 

[8]     Section 190 (1) and (2) of the Electoral Act provide that:

“(1) Whenever a question arises as to whether the seat of a member of the National Assembly has become vacant, that question shall be determined by the High Court in accordance with section 125.

(2) On the hearing of an application under sub section (1), the court shall determine the question.”

 

[9]     Section 125 reads:

“In accordance with section 69 of the Constitution, the High Court has exclusive jurisdiction to hear and determine any question whether-

(a) ……

2. the seat of any member in the National Assembly has become vacant.”

 

[10]   Section 126 (3) provides that:

“(3) An elector, a political party which participated in the election, a candidate or a member of the National Assembly or the Attorney General may apply to the High Court to determine a question referred to in section 125 (b).” [Emphasis added]

 

[11]   Section 188 (3) provides 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 from being a member under this Act.” [Emphasis added]

 

[12]   Section 189 (2) directs that:

“If a vacancy occurs in respect of a seat allocated to a party under proportional representation, the Speaker shall appoint the next person on the party list contemplated in section 51[6] in order of preference.”

 

Discussion

[13]   The petition raises the question whether by moving from a seat on the Government side to occupy a seat on the side of the Opposition, the MP crossed the floor and, thereby, rendered the seat vacant per section 188(3).  The nature of the alleged floor-crossing is the change of seats from the Government side to the Opposition benches.  The proper enquiry, therefore, is whether switching seats from one side of the House to the other constitutes floor-crossing.

 

[14]   The Electoral Act does not define the act of crossing the floor.  Furthermore, the Constitution does not even list floor-crossing as one of the grounds on which a member vacates a seat[7].  Therefore, floor crossing is a statutory ground to declare a seat vacant.  The propriety of adding floor-crossing as an extra constitutional ground to exit the National Assembly does not arise because there is no constitutional challenge before us. 

 

What is floor-crossing?

[15]   Parliament has not provided a working definition of floor-crossing.  It has left its nuts and bolts for judicial determination.  Absent Parliament’s word on what it means to cross the floor, the Dictionary is the search light.  The Concise Oxford Dictionary 8^th edition defines it to mean “joining the opposing side in a debating assembly”.  The definition should be considered in the context of the sitting arrangement in the National Assembly described by Erskine May[8] in the following terms:

“In the same way as the seating of Members in the House of Commons is arranged on the basis of a single clear-cut division between Government and Opposition, many other matters, in particular the arrangement and conduct of business, are based on this principle.  The normal condition for the working of this arrangement is the division of the House between two major parties, but the fact that there may be several separately organized parties, supporting or opposing the Government, while it complicates the working of these arrangements, does not destroy the broad principle.”

 

[16]   Although the two major political parties sit opposite each other, there are also seats to the right angles on which members of other parties sit.  These seats are referred to as the Cross-bench.  Members who sit there are referred to as cross-benchers or the open and unbiased[9].

 

[17]   The dictionary meaning of floor-crossing does not, in my respectful opinion, shed sufficient light on what “joining the opposing side” entails.  I suggest that the contextual interpretation of those words is the politics of defection and purpose of anti-defection rules.  The purpose for disallowing defections by MPs is explained by the Constitutional Court of South Africa as follows[10]:

“[186] …Under a list system of proportional representation, it is parties that the electorate votes for, and parties which must be accountable to the electorate.  A party which abandons its manifesto in a way not accepted by the electorate would probably lose at the next election.  In such a system an anti-defection clause is not inappropriate to ensure that the will of the electorate is honoured.  An individual member remains free to follow the dictates of personal conscience.  This is not inconsistent with democracy.

[187] …An anti-defection clause enables a political party to prevent defections of its elected members, thus ensuring that they continue to support the party under whose aegis they were elected.  It also prevents parties in power from enticing members of small parties to defect from the party upon whose list they were elected to join the governing party.  If this were permitted it could enable the governing party to obtain a special majority which it might not otherwise be able to muster and which is not a reflection of the views of the electorate.”

 

[18]   The Supreme Court of India provides a nuanced explanation:

“Unprincipled defection is a political and social evil.  It is perceived as such by the legislature.  People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom.  The anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct – whose awkward erosion and grotesque manisfestations have been the base of the times – above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation[11].”

 

[19]   I find the aforegoing dicta illuminating.  It is my respectful opinion that they shed more light than the dictionary definition of floor-crossing by a context and political reason to allow it. 

 

Does switching sides in the House constitute floor-crossing?

[20]   It is contended by the petitioners that the MP crossed the floor by first, disobeying the instruction of the party to sit on the Government’s side and support it and, secondly, by switching seats.

 

[21]   The counter-argument of the MP is that, firstly, the petitioners do not have first hand information that he has crossed the floor.  What they contend happened is hearsay and inadmissible.  Secondly, the ruling of the Speaker that switching seats does not constitute floor-crossing is legally correct.

 

[22]   The determination of the issue whether floor-crossing has occurred is the exclusive preserve of the Court[12].  The Speaker has no say in the matter.  His ruling is inconsequential.  If and when an MP exhibits conduct which his party considers it to constitute floor-crossing, this Court should be petitioned to settle the matter.  It is not a matter to be debated at the floor of the National Assembly and settled by ruling of the Speaker.

 

[23]   A petitioner need not be in the House to witness the floor-crossing and is not even bound by the ruling of the Speaker on the matter.  Crossing the floor is a matter of public interest and not just an instrument of political party control over the conduct of proportional representation MPs.  It is for this reason that section 126 of the Act grants statutory locus standi to voters in matters of floor-crossing.

 

[24]   That the MP has switched sides to occupy a seat on the side of the Opposition admits of no doubt.  But whether by so doing he defected and joined another party in the Opposition, there is no proof.  In fact, the petitioners have not suggested that the MP joined another political party.  Rather, they contend that he “migrated” from the Government side to the side of the Opposition and suggested that this is sufficient to tag the conduct as floor-crossing. 

 

[25]   If at the time of joining the Government side without defecting to the ruling party he did not by that fact cross the floor, I do not see how switching sides without joining a political party in the Opposition has a different effect.  I hold the opinion that a Rubicon is crossed by an MP if he defects to another political party in the House.  Sitting on the “wrong” side of the House is not per se floor-crossing.  It is a thing that the Speaker can control in order to avoid confusion and chaos in sitting arrangements.

 

[26]   A political party submits a list of names of its proportional representation MPs.  The public expects MPs to champion the manifesto and programme of the political party on whose ticket they enter Parliament.  The programme unfolds in the House and is articulated and refined there for engagement with the rest of MPs with the view to garnering support.  It is in the course of engagement that votes are gained, get lost and compromises made.  The process of engagement does not obey a one size-fits-all rule.

 

[27]   An instruction to an MP that on entering the House, he should always support Government or the Opposition strikes at the heart of the MP’s freedom and independence in Parliament necessary for effective and fearless performance of parliamentary duties.  An instruction in such rigid terms means that the MP is bound to lend support to Government or Opposition even when, in his sound judgment and good conscience, Government fails to deliver on its promises, behaves unconstitutionally, is corrupt or when the Opposition is obstructionist, disloyal and not constructive[13].  Obeying the sort of instruction is tantamount to ganging up and not supporting.   There would be no difference between UFC and the ruling party.  The MP would be failing in his constitutional duty to hold the Government accountable, moreso, when the UFC is not a coalition partner of the ruling party.

 

[28]   MPs enjoy certain immunities and privileges for purposes of effective discharge of their duties in Parliament.  The immunities and privileges protect them from criminal and civil liability for things said or done in Parliament such as motions, debates and votes on bills and policy proposals, proceedings within committees and questions[14].  As explained by Griffith and Ryle[15]:

 

“Without this freedom parliamentary scrutiny of the executive would be muzzled and individual Members’ defence of the interests of their constituents and others would be severely constrained.  As in courts themselves, the House of Commons could not work effectively unless its Members were able to speak and criticise without having to account to any outside body.  Freedom includes the freedom to make mistakes.  There would be no freedom of speech if everything had to be true before it was uttered.”

 

 

[29]   The immunity and privilege granted to MPs protect them from retaliation and disciplinary action for disobeying political party instructions, especially if the disciplinary action does not come from the party Whip.     A narrow interpretation that exposes MPs to retaliation by extra-parliamentary political party structures defeats the purpose and effect of the protected immunities and privileges.  A political party cannot punish the MP for conducting himself according to the behest of the Constitution, laws, rules and good service to the people.   As said by Mogoeng CJ in UDM[16]:

 

“[79] Central to the freedom ‘to follow the dictates of personal conscience’ is the oath of office.  Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws.  Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme.  Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.  This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution.  The requirement that their names be submitted to the Electoral Commission before the elections is crucial.  The people vote for a particular party knowing in advance which candidates are on that party’s list and whether they can trust them.”

 

 

[30]   This dictum sets boundaries for party instructions to MPs.  The instructions should rhyme and reason with the values of democracy and constitutional duties of MPs.  Narrow and parochial intra-party disputes should not be allowed to defocus and derail MPs from supporting policies and laws that advance the public interest.

 

[31]   It is contended by the petitioners that since the MP occupies a seat that is allocated to the political party, he is duty-bound to obey its instructions.  If not, he no longer represents its interests and is liable to be recalled at its pleasure.  An argument along similar lines was made in the Five Senators’ case[17] in which Motlotlehi sought to revoke the appointment of Senators he had appointed because they no more served his interests in the Senate.  Johnston ACJ rejected the argument thus:

 

“Finally, I wish to deal with the contention of  Dr. Lowen for the First Respondent that the intention of section 34 of the Constitution is that Motlotlehi should have the power to nominate eleven Senators for the time being, in the sense that they were appointed during the pleasure of Motlotlehi, and their appointments were revocable, if they did not look after the interests of the Paramount Chief, express his views and represent his wishes in the Senate.

 

This appears to be quite a remarkable proposition.  The Court must ask itself the question as to whether, in a state which is at the penultimate stage of constitutional development before complete political independence and sovereignty, such a proposition is consistent with what the 1963 Constitutional Commission described as carrying through to its logical conclusion the process of handing over to a democratic government.  Such a proposition appears to the Court to strike at the whole principle of the right of free speech of a member of Parliament in either house, and indeed at the right of freedom of expression in section 11 of the Constitution.  Furthermore, in the case of any nominated Senator who is a member of the Cabinet, an unwilling submission to the requirements of Motlotlehi for the purpose of salvaging his membership of the Senate could in certain circumstances be quite incompatible with the concept of collective responsibility of the Cabinet enshrined in section 67 (2) of the Constitution.”[18]

 

[32]   In my respectful view, the dicta provide a complete answer to the petitioners’ argument.  It is accordingly rejected.

 

III. DISPOSITION

[33]   The petitioners have failed in their bid to have the MP vacate the seat on account of floor-crossing.  Yes, he has defied the party’s instruction to sit on the side of Government and to support it.  But he has not renounced his allegiance to the party and defected to another one.  Such conduct does not equate to floor-crossing.  In fact, iron-cast instruction to always vote with Government puts the MP in a straight-jacket.  He is reduced to a puppet incapable of independent critical thought and rational choice, thus undermining his intelligence and status as a representative and not mere delegate.  As said by Grayling[19]:

 

“Those elected have to be fit for the purpose of acquiring information, examining it, listening to arguments relating to it, forming judgments, submitting their judgments to the scrutiny of others, changing their minds if they encounter evidence and reasons that compel a change of mind – and reaching decisions that responsibly address the interests of more than their own partisan loyalties.  The elected therefore have to be representatives in the full meaning of this term, not messengers or delegates merely relaying – independently of what they come to know by being engaged full time in the business of government whether in the governing party or an opposition party – the majority wish of those who voted for them.”

 

Order

[34]   In the result the following order is made:

          1.       The petition is dismissed with costs.

 

 

--------------------

S. P. SAKOANE

CHIEF JUSTICE

 

 

I agree                        ---------------------                             

M. MOKHESI

JUDGE

 

 

I agree                         --------------------

N.G. HLAELE

JUDGE

 

 

For the Petitioners:                Adv. K. Letuka, F. Sehapi  

For the 1^st Respondent:         No appearance

For the 2^nd Respondent:         Q. Letsika

For the 3^rd Respondent:         No appearance

For the 4th Respondent:        M. Moshoeshoe