1

IN THE
HIGH COURT OF LESOTHO

CIV/APN/207/98

In the
matter between:

BASOTHO
NATIONAL PARTY 1ST APPLICANT

BASOTHO
CONGRESS PARTY 2ND APPLICANT

MAREMATLOU
FREEDOM PARTY 3RD APPLICANT

AND

INDEPENDENT
ELECTORAL COMMISSION 1ST RESPONDENT

ATTORNEY
GENERAL ND RESPONDENT

JUDGMENT

Delivered
by the Honourable Chief Justice Mr. Justice J.L.KHEOLA on the 19th
day of May. 1998.

Like both
counsel did yesterday, I am also going to read extensively from the
affidavit of the applicants and the respondents, I
do not have time
to give summary of what these people the deponents have said so what
I am going to do

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is to
read the affidavits of the applicants and the respondents and then
later at my leisure I will try to compile a proper judgment.
I don't
mean that what I am going to say is not a proper judgment, it is to
some extent but it is not as detailed as it ought to
be, there is no
time for such a detail. So you will excuse me for looking from one
document to another in order to read these affidavits.

This is
an application for an order in the following terms :

1. The
   rules of court pertaining to notice and service be dispensed with
   and the matter be heard on urgency.

   
   

2. A
   rule nisi be issued returnable on the 18th at 2:30 p.m. or a date to
   be determined by this Honourable Court calling upon the
   respondent
   to show cause, if any, why;

   
   

1. First
   and second respondents' refusal to supply the applicants with
   copies of the provisional electoral lists for the eighty

   constituencies free of charge shall not be declared unlawful.

   
   

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2. First
   and second respondents shall not be ordered to provide or supply
   applicants with each a copy of the provisional electoral
   list for
   each of the eighty constituencies.

   
   

3. First
   and second respondent shall not be ordered to delay the elections
   until such time as the applicants have had a reasonable
   opportunity
   to study the electoral list and make objections thereto, should
   they so wish.
   

   
   

4. Respondent
   shall not be ordered to pay costs in the event of opposing this
   application.

   
   

5. Applicant
   shall not be granted such further and/or alternative relieve.

   
   

hat
prayer I operates with immediate effect in the interim. This
application was brought as an ex parte application on a certificate

of urgency. It was granted by my Brother Mr.Justice Mofolo on the
16th April, 1998 and returnable on the 18th April, 1998.

The
leaders of the three (3) applicants have filed the founding
affidavits which set out the alleged irregularity committed by the

Independent Electoral

4

Commission
(IEC). The main affidavit is made by Mr.Molapo Qhobela who is the
leader of the 1st applicant, in paragraph 9 of his
founding affidavit
he alleges that after the dissolution of parliament on the 27th of
February, 1998, notification and date for
closing of nominations for
the election of a new parliament were given in the government gazette
on the 3rd March, 1998. In terms
of the said gazette, the 23rd May,
1998 was proclaimed as polling day for holding of a general election
to return members of the
National Assembly for all constituencies of
the Kingdom of Lesotho. The notice further decreed that the date on
and from which
the registration of electors was to be suspended was
the 10th of March, 1998 and the date on which nomination of
candidates was
to close was the 20th April, 1998. He continues to
depose that in reply on the 14th April, 1998 the authorized
representatives
of the applicants met the IEC in a meeting under the
chairmanship of the chairman of the IEC namely Mr.Mafisa at the
headquarters
of the IEC in Maseru. On behalf of the B.C.P.
Mr.T.Makhakhe, the deputy leader, and Mr.S.Toloane, the Treasurer
General, of the
party together with the other authorized
representatives of the second and third applicants, jointly submitted
a request for copies
of the electoral list in respect of the eighty
constituencies.

In reply
to the aforesaid request Mr.Mafisa told the authorized
representatives that he was not prepared to supply them with the
said
electoral

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lists.

The
reasons given by him were as follows:

1. The
   computers were broken and he therefore could not physically provide
   them with the lists.

   
   

2. That
   in terms of his understanding of the provisions of the election
   order, there was no legal requirement that the I.E.C. provide
   such
   lists to the political parties concerned.

   
   

In
paragraph 14 he alleges that he further wishes to point out that at
that stage when nomination took place, request were made
on
nomination day by Mr.Lebenya Chakela to the nomination court in
Maputsoe Constituency Number 15 Mr.Lebenya Chakela pointed out
that
the list was public document and requested sight of a copy in order
to make a photocopy for himself, in reply thereto the
returning
officer at the nomination court said to Mr .Chakela that the court
had instructed him not to release the lists to anybody
under any
circumstances. At the stage when the nomination court said on the
20th April, the nomination court had in its possession
an electoral
list, this was seen by Mr.Chakela, it was quite clear that it was
electoral list which they did not deny to be the
electoral list and
it was also clear that they were using the electoral list in order to
check for nomination

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purposes
and in particular that Mr.Chakela who was nominated was a voter in
that

constituency.

Paragraph
15, after the completion of the registration of voters, computer
generated lists of voters became available for public
inspection on
the 14th April, 1998 in each voting centre in each constituency,
these were bulky documents, the list for stadium
area for instance,
the constituency with the highest voters 21 405 contained for an
example 556 pages, this lists were constantly
surrounded by voters
who had come to examine the list in order to determine whether their
names were on the list. It was impossible
for anyone seeking to study
a list as a whole and deal with it meaningfully to do so in those
circumstances.

n
paragraph 16 Mr.Makhakhe the deputy president of B.C.P. and acting as
duly authorized representative of the first applicant having
been
duly authorized thereto by way of written authority under the
signature of the party secretary approached the Director of
Elections
and they requested the IEC to make copies available in order that the
B.C.P. should be in a position to organize a meaningful
systematic
study and investigation of each list. This request was made to the
aforementioned Director on the 14th April, at the
latter's office in
Maseru. The aforesaid director, the first respondent answered that
the IEC was not obliged to

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make
copies of the list available to the political parties. Mr.Makhakhe
was amazed at that answer, he replied that the law required
him to
make copies available free of charge to the political parties and
that this had been the practice in the past. The director
however
disputed the contention that the IEC was under any obligation to
provide copies of the electoral list.

In
paragraph 17 Mr.Makhakhe thereafter went to his own constituency for
which he had been a member of parliament namely Maliepetsane
and
found it impracticable to carry out any meaningful check on the list
because of the congregation of persons trying to get access
to the
list. In desperation Mr.Makhakhe returned to the Director of Election
on the same day or the day thereafter and emphasise
the absurdity of
trying to check the electoral list at the registration centre and
renewed this request that the IEC make copies
available. This request
was rejected by the Director of Elections who then said that the
B.C.P. could buy computer discs and have
the information copied from
discs in the possession of the IEC, when this was reported to us we
investigated, so says Mr.Makhakhe
the cost of purchasing the discs in
question and the cost of employing a firm to copy the information and
supply printouts on the
list and discovered the cost thereof to be
beyond the means of the party.

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In
paragraph 19, he alleges that it was at that stage to the 17th or
18th of April, and very close to the 19th of April being the
day on
which the IEC had decreed that the last day on which objections to
the electoral list could be allowed.

In
paragraph 20 he points out that even subsequent to the 19th of April
when the electoral lists were no longer needed for the purpose
of
public inspection, the IEC despite the fact that there were spare
copies available from the constituencies maintained this refusal
to
make the copies available from every constituency.

In
paragraph 21, he further points out that the five days allowed for
the making of objections was unreasonably short and that it
in any
event was not in compliance with the election order, that is order
number ten (10) of 1992. In 22 he respectfully submit
that there is
no other appropriate and meaningful remedy available to the
applicants, if the elections were to proceed in the present

circumstances the democratic process will sustain irreparable harm.
The balance of convenience requires the postponement of election
to
enable the opposition parties to carry out their democratic duty to
scan and verify the correctness of electoral lists. He further

submits that there is a probability that potential phantom voters may
play a critical role in the election unless the opposition
parties
are

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given a
reasonable opportunity to study and object where necessary to
irregularities in the electoral lists.

ragraph
24, he submits that the IEC in breach of the provisions of the
electoral order has clearly prevented the fulfilment by the
political
parties of these obligations to monitor the registration process in
terms of section 16 of the election order and has
further- more not
complied with the IEC's duty to assist the political parties in terms
of section 16B to obtain information on
activities relating to the
registration of electors.

In
paragraph 25, he alleges that after the refusal to supply the
provisional electoral lists, they decided that they should take
legal
action. However they were informed towards the end of April that the
second applicant had ordered an audit of the electoral
lists. They
decided to wait until the results of such audit became available.

Now I
continue with the affidavit of Mr.Sekara Mafisa the Chairman of the
Independent Electoral Commission who avers in paragraph
5, that on
the 13th of April, 1998 a provisional version of the general register
as contemplated by section 21A of the National
Assembly Election
Order 1992 was complete and

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copies of
such lists were displayed at all centres which were used for the
registration of electors in 1998. Pursuant to such publication,
he,
through the medium of radio broadcast, invited all political parties
to a meeting at the offices of the IEC. His distinct recollection
is
that by and large all registered political parties participated in
this meeting. At the meeting he informed all who pariticapated

therein that a provisional version of a general register had been
published as stated and asked all parties to encourage all their

supporters to go to the centres and inspect the list and make
objections thereto or claims for inclusion therein where names were

mistakenly omitted.

In this
context he says he should also refer to Legal Notice number 16 of
1998 regulation 5 which sets out procedure if an electors
name is
omitted from the provisional version of the register. He continues
that he admits that a request was made for copies of
provisional
electoral lists to the said request he responded that his obligations
are as prescribed by law and that in terms of
section 21 (a) there
was no obligation to supply political parties with provisional
version of the general register, he also pointed
out to them that the
obligation imposed on him by law was to the effect that such lists
should be published within each electoral
area or an extract
containing that part of the register that relates to the area
concerned.

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In
paragraph 6 he alleges that here he should point out that the
deponent on behalf of the B.C.P. had never attended any of the

meetings convened by him and the averments in his founding affidavit
as to what happened at those meetings constitutes hearsay
and should
be disregarded by the court.

Nevertheless
he does recollect that representatives of B.C.P. requested them to
supply them with copies of provisional version of
the general
register as it would assist them in checking lists in their own area,
he says that he must reiterate that they accepted
the soundness of
his legal position that the IEC is not obliged to supply them with
copies of provisional version, however he should
reiterate that
averments in this paragraph are incorrect, it did not tell them that
the computers were broken, he told them that
the printer was
non-functional and that it was not possible to print the list they
requested.

However
in the spirit of accommodation he called in their computer expert and
he said that if political parties could provide their
own diskette,
he would try to accommodate their wishes. Mr.Mafisa says that he
wishes to point out that the B.N.P. subsequently
provided their own
diskette and copies of the register were supplied. Mr.Makhakhe
brought a diskette for his constituency and there
a copy was made and
given to him. Mr.Mafisa said he is surprised beyond measure to

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observe
that an issue which he had hoped that had been consigned to the limbo
of oblivion has now been resurrected by the three
applicants probably
in pursuit of some hidden and obscure agenda.

In
paragraph 10 of his affidavit, he alleges that all that can be said
about this paragraph, that is paragraph 17 of the applicants
is that
IEC is supremely happy that the ordinary Masotho displayed a keen
interest in checking the list, he fails or discern any
rational basis
for the complaint about the list bearing in mind that Mr.Makhakhe
himself had procured a list for his constituency
and one of the
co-applicant B.N.P. apparently had no pecuniary problems in procuring
a diskette and obtain the list after all charity
begins at home.

Paragraph
15, it is submitted that Legal Notice Number 16 of 1998 of the
National Assembly Regulations 98 Regulation 15 provide
that any
person whose name is not on a provisional list but who claims to be
registered as an elector shall make an application
to the Director to
have his or her name included in the final list not later than 5 days
after posting of the provisional list.
It will be observed that only
in respect of claims for inclusion of names which were mistakenly
omitted is the shorter period of
5 days provided. It is accepted that
section 33 subsection 2(a) of the National Assembly Election order
provides that an objection

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shall be
lodged within 15 days or such longer time as a Director may specify
from posting of provisional lists. He says he wishes
to point out
that in respect of objections, the 15 days time limit allowed in
every case though omission of name in register is
not an objectnable
matter but one which requires a claim for inclusion, he says that he
must also state that IEC had devised two
separate forms for
correcting the provisional register, one dealing with omissions from
the register and other dealing with objection
for inclusion in the
register of the names.

In 16 he
alleges that section 9(b) clearly provides that the commission may
adapt any of the provisions of the electoral law as
maybe required to
achieve the purposes of the electoral order to such an extend as the
commission consider as necessary to meet
the exigencies of particular
situation. It must be reiterated however that the 15 day time limit
prescribed by section 33, 2(a)
of the National Assembly Election
Order 1992 for making objections to the provisional version of the
general register was adhered
to.

Paragraph
17, he alleges that the contents of this paragraph that is paragraph
22 of the applicants are vague and embarrassing,
and abound in
generalities the applicant seemed to forget that after the
publication of the provisional list and after due consideration
of
claim for inclusion and objections a final electoral list had

14

been
compiled by the IEC after undertaking a massive exercise in which
considerable public funds had been used. In terms of section
24 it
can be made available to any member of the public on payment of a
fee. Section 24 subsection 4 provides that after the printing
of the
electoral list, the Director of Elections is legally obliged to
provide a copy of the list free of charge to the authorized

representatives of every political party. He says he wishes to inform
the court that in strict compliance with the law copies of
the lists
have been supplied to all political parties.

It is
indeed a matter of some comfort to him that none of the applicants
have any complaints about the final product which is the
electoral
list. It is strange and difficult to understand to say the least that
three political parties have concentrated their
energies towards an
absolete, a nonfunctional provisional list which was published over a
month ago. It is a notorious fact that
the electors in this country
are getting themselves geared to exercise the democratic and
inalienable right to cast their vote
and elect the government of
their choice which will lead Lesotho into the next millennium.

It will
make the IEC a laughing stock not only to people in this country but
even internationally especially in view of the much
publicized fact
of the arrival

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of
international observers who are here to observe and elevate the
conduct of the elections, evaluate the conduct of the elections.
He
goes on to say that he should add that the postponement of the
elections will have the effect of dampening, the spirit of the

Basotho people and create problems of instability, insecurity and
chaos in this country. No court of law would in anyway contribute
to
create such a disastrous situation in any country. The balance of
convenience demands that in the public interest the election
be held
as scheduled. He goes on in other paragraphs to show that all parties
were given money instalment of Ml I 875.00 to assist
in their
expenses.

That is
about all regarding the evidence in the affidavits. I now come to the
law and try to interpret it as best as I can. There
are two
interpretations of the same section by the applicants and the
respondents. It is my onerous task to give a final interpretation

which is the correct one.

I begin
with section 21 A(I) of the National Assembly Election Order 1992
which reads as follows;

"Immediately after the dissolution of the National Assembly and
at any other time when it appears to the Director of Elections
that a
general

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election is to held, he or she shall -

1. prepare
   a provisional version of the general register ; and

   
   

2. as
   soon as practicable afterwards, ensure that there is published
   within each electoral area either -

   
   

(I) that provisional version; or

(ii) an extract containing the part of that provisional version that
relates to the area concerned.

That is
the section which deals with what is called the provisional version
of the general register.

I shall
not deal with section 22(1) and (3) of the National Assembly Election
Order 1992 (The Order) which reads as follows:

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1. The
   Director of Elections may, whenever he or she considers it necessary
   to do so, and shall, as soon as practicable after the
   registration
   of electors is suspended in accordance with section 19 (1), prepare
   -

   
   

1. in
   the case of a general election - an electoral list for each
   constituency: or

   
   

2. in
   the case of a by-election or a fresh election for a constituency -
   an electoral list for the constituency.

   
   

3. The
   Director of Elections shall provide a copy of each of the lists
   prepared under this section, without charge -

   
   

1. to
   the authorized representative of each political party; and

   
   

2. to
   each area electoral officer.

   
   

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That is
the section which deals with the electoral lists for each
constituency.

Another
section which deals with electoral lists is section 24(1) and (4) of
the order which read as follows:

"(1) The Director of Elections shall arrange for the printing
of-

1. in
   the case of a general election - an electoral list for each
   constituency not later than 30 days before the polling day,
   or if
   there is more than one polling day, the first polling day for the
   election.

   
   

4. As
   soon as practicable after an electoral list is printed under this
   section, the Director of Elections shall provide a
   copy of the
   list, without charge -

   
   

1. to
   the authorized representative of each political party; and

   
   

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2. to
   the area electoral officer of the electoral area concerned."

   
   

In their
application the applicants were requesting that they be provided with
the provisional electoral lists in terms of section
22(3) of the
Order. It is very clear from the reading of this subsection that it
is written in mandatory terms that the Director
of Elections shall
provide a copy of each of the lists prepared under this section,
without charge, to the authorized representative
of each political
party and to each electoral officer.

It is
quite clear to me that Mr.Mafisa, the Chairman of the IEC
misconstrued the law when he said that the IEC is not under any

obligation to provide the applicants with the electoral lists free of
charge. That is clearly stated in subsection 3 of section
22 of the
Order.

In his
affidavit Mr.Mafisa seems to use the terms "provisional version
of the general register" under section 21A(1) of
the Order and
the term "electoral list" under section 22(1) (a) of the
Order interchangeably. I do not agree with him
that those two
documents are the same. I think what the applicants were applying for
is an electoral lists. His first reaction
to the applicants' request
was that the IEC

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was under
no obligation to supply them with such lists. It seems to me that he
subsequently discovered that he was wrong. He then
said that he was
unable to print copies of the lists for them because his printer was
out of order.

I
criticise Mr.Mafisa for having relied on one printer without any
spare printer to be used in case of an emergency similar to the
one
he had. I disagree with the submission that was made that Lesotho is
not like South Africa where they have lots of money. I
am quite sure
that the Government of Lesotho can provide IEC with two or several
printers if IEC made such a request. Elections
are a very important
event in any country. The programme for elections is very tight and
has many dead lines. In order to observe
such dead lines Mr.Mafisa
ought to have been provided with adequate equipment.

Be that
as it may he was unable to provide the applicants with what they were
entitled to in law. It was not because he was hostile
to them but
because he did not have the right equipment at the right time.
Mr.Mafisa seems to have had a very good working relations
with all
the political parties until this incident when there is a
confrontation between him and the applicants and unpleasant
words are
used.

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That the
representatives of the parties have to be provided with electoral
lists without a charge is repeated in two sections of
the Order -
sections 22(3) and 24(4). So the applicants have a cause for
complaint.

Now I
come to the critical question. Was the irregularity committed by the
IEC so serious that the elections should be postponed?
Does this
Court, the High Court of Lesotho, have the power to postpone the
elections? Has it ever happened in this country that
the High Court
ever postponed general elections? His Majesty The King has fixed the
polling day. I shall answer all the questions
I have posed above.

I shall
now deal with the gravity of the irregularity committed by the IEC.
It is not actually alleged that it was a deliberate
act on the part
of the IEC to commit this irregularity. It was because their printer
was out of order making it impossible to print
the lists. It must be
pointed out that these electoral lists were published in every
electoral area where voters were given the
chance to inspect them in
order to find out whether their names were not omitted. In their own
affidavits the applicants allege
that at these electoral there were
large groups of voters who were checking the lists.

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The case
before me is not that large numbers of voters who are followers of
the applicants, found in dismay that their names had
been omitted.
Even the leaders of the applicants do not complain that their names
were omitted in that list. I say this because
the IEC provided them
with diskkets from which the leaders of the second respondents
produced copies of the electoral lists. They
do not complain that
their names were omitted. They complain of the possibility of the so
called phantom voters. How they were
going to establish from the
lists that certain registered voters were phantom voters, is beyond
my understanding.

What is
important as far as I am concerned is that the voters including the
applicants' supporters were properly registered and
their names
appeared inn electoral lists. That was the reason why there were no
long queues of people complaining that they had
not found their names
in the lists. The applicants and their Senior Counsel, Mr.Soggot, are
of the opinion that the irregularity
complained of goes to the root
of the elections and that once it has been proved their application
must succeed. I do not agree
with that submission because it is the
voters who are going to cast their votes because their names have
been included in the lists.
The suspicion by applicants about the so
called phantom voters is neither here nor there. It is an
unsubstantiated suspicion. They
have not filed a single affidavit
from a voter that his or her name has been excluded from

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the
electoral lists.

I find
that the irregularity committed by the IEC is not so serious that the
general elections have to be postponed.

The
evidence of Mr. van der Berg is found in his supporting affidavit. He
describes himself as a forensic investigator. The audit
which was
conducted under his supervision and the analysis of the electoral
lists disclosed that an analysis on Constituency 57,
which was
selected at random and an analysis of Constituencies 56, 57, 58, 59
and which were analysed collectively, they found
an inexplicable high
number of voters, up to ten times the average, who were bom on the
specific days of the year; for example:

In
constituency 57 consisting of 9196 voters, whose full dates of birth
were recorded, 230 voters were recorded as having been bom
on the
first of January. This amounted to approximately 9 times the expected
average.

In
constituencies 56,57,58,59 and 60, taken collectively and consisting
of 38646 voters whose full dates of birth were recorded,
1100 of
these were recorded as having been bom on the first of January. This
amounted to approximately 9

24

times the
expected average.

The
evidence of Mr. van der Berg is not helpful to the Court because the
averages which he relies on are based on the findings in
developed
countries in which registrations of births is a regular practice and
all the people bom in such countries have accurate
birth
certificates. In Lesotho the majority of people do not know the dates
of their births. They do not have any birth certificates.
It is not
surprising that many people are recorded as having been bom on the
same date. It is a date they probably decided that
it is good enough
for them. Or they were told by their parents or even older friends
that they were bom on that particular date.
Those voters have no
birth certificates and I do not see how the applicants can disprove
those dates of birth.

It seems
to me that the voters/followers of the applicants who live in the
same villages with the people whose dates of birth are
causing some
concern, ought to have raised objections.

The
evidence of Mr. van der Berg is not conclusive. The voters concerned
may have lied about their dates of birth but he is in no
position to
refute those allegations.

I now
answer the most important question I posed above whether this Court

25

has the
power to postpone the polling day that has been proclaimed by His
Majesty The King. In terms of section 119 of the Constitution
of
Lesotho the High Court has unlimited original jurisdiction to hear
various matters stated in the section. Certain statutes can
limit the
jurisdiction and confer jurisdiction on other bodies.

The
National Assembly Election Order 1992 provides in section 99A that
The King can postpone the elections.

The
powers of the High Court are set out in section 100 to 112
(inclusive) which deal with election petitions. There is no provision

in the above Order giving power to this Court to postpone the polling
day. 'Furthermore I say that even if this Court had the power
to
postpone the polling day, in the present case the irregularity
complained of is not so serious that it would entitle the applicants

to a postponement.

I
disagree with the allegation that the applicants have no other
remedy. They have the right to bring election petitions after a

specified period after the elections.

For the
reasons stated above the rule is discharged with costs.

26

J.L
KHEOLA

CHIEF
JUSTICE

19TH MAY,
1998

For
Applicant - Mr. Soggot

For
Respondents - Mr Tampi