CIV/APN/156/98
IN THE HIGH COURT OF LESOTHO
In the matter between:-
TSOLO LELALA APPLICANT
and
BASOTHO NATIONAL PARTY 1ST RESPONDENT
RETSELISITSOE SEKHONYANA 2ND RESPONDENT
LESETELI MALEFANE 3RD RESPONDENT
JUDGMENT
Delivered by the Honourable Mrs. Justice K.J. Guni on the 06th day of May, 1998
There is a dispute regarding the elections for BMP Nomination for candidacy to stand for the coming general elections at HA MAAMA constituency. It appears only two candidates entered the race in that primary elections. The applicant herein is one of the contestants in the said primarily elections. He describes himself in his Founding Affidavit as a member of the BNP MAAMA Constituency No.40. He is also a member of two other Committees of BNP i.e the Executive Committee and (the Working Committee.
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The other contestant in the primary elections held at HA MAAMA Constituency is the 3rd respondent herein. He is described in the applicant's Founding Affidavit as the member of BNP MAAMA Constituency. Applicant and 3rd respondent wish and are desirous to be elected and /or nominated to stand as BNP candidates at HA MAAMA Constituency in this coming general elections.
There are quite a number of facts which are in the common cause in this present applicant.
It is established that on 5/04/98 and 14/4/98 the elections for nomination to stand as a BNP candidate in this coming general
election at HA MAAMA constituency were held.
It is also established that in the conduct of the said elections, on the 5th and 14th April'98 there were some errors which were
committed. Attempts were made to rectify some of them though not successfully. There is therefore a need to finally rectify those
mistakes.
Those mistakes must be rectified where they occurred by the people who are most concerned and have a right to do so.
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The proposed manner by either party for rectification of those errors differ
significantly. The court has decided to follow its own route different from any route suggested by each party in their prayers. You may wonder a little why and how can the court give you what you have not specifically asked for in your prayers. Let me hasten to add that The answer will be found in fact in your prayers. Every litigant recognises the power and authority of the court to decide as it thinks fit. Every litigant concludes his or her prayers by asking the court to grant further and/or alternative relief as it sees fit.
It is in the light of those prayers and the circumstances of this case that when this application was initially placed before Honourable Mr Justice S PEETE AJ he forth with issued out the rule in the following terms:-1 That the INDEPENDENT ELECTORAL COMMISSION is hereby interdicted from filing in a nomination for the MAAMA CONSTITUENCY relating to the parties herein pending finalisation hereof
The matter is postponed to the 29th day of April, 1998.
Applicant is authorised to file such further supplementary affidavits by the 21st day of April, 1998 as may be necessary.
Respondents are permitted to file such opposing affidavits as may be necessary by Friday the 24th April, 1998.
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The parties have filed as ordered the appropriate papers. Those papers have been thoroughly perused. The matter was heard on 29/4/98 as ordered. The arguments made on 29/4/98 by the counsel for applicant and respondents have been most eloquent and helpful.
The time is not on our side. The number of days within which the nominations, of candidates for 1998 general elections should be made, is steadily diminishing. I have therefore found it expedient to allow the people of HA MAAMA Constituency who are the final and ultimate authority as regards the determination of who should represent them to exercise their right which enables them to participate in government. The Supreme Law of the land "1993 constitution of Lesotho" so demands by enshrining every citizen's right to vote his or her representative to parliament.
The Rule NISI issued out by Honourable Mr Justice S PEETE AJ on 18th April 1998 is finally discharged and the following order is made as a final order in this matter..
It is ordered that:-
The Constituency Committee of HA MAAMA is directed to arrange for new
5 constituency elections of candidates following to the letter and spirit the provisions
of Legal Notice No38 of 1998 more particularly constituency boundaries as shown in that notice.
Those primary elections must be held within seven days from the date of this order.
The 3rd respondent is recused from his membership of the constituency committee of HA MAAMA, only in the preparations for that
constituency's primary elections which are to be held following this court order for the nomination of the candidate to represent BNP at this coming general elections..
Applicant and 3rd respondent should contest the said primary elections in that constituency of HA MAAMA, on the date which must occur within seven days of this order. That date of Constituency elections to be held following this order must be announced by the election officer appointed to conduct such elections. That announcement must be made at least two days before the said constituency elections take place.
The electors should satisfy the election officers that they qualify to vote in that HA MAAMA constituency in this coming general elections. The contestants of the said elections or their agents must also be so satisfied that those taking part in that election are people who are entitled to vote in that particular constituency.
The Executives Committee of 1st respondent (BNP) is directed by this order to
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appoint immediately at least within 48 hours of this order a person or two persons who in its opinion are of high calibre and integrity
to conduct the said constituency primary elections.
The second respondent is ordered to forgo any powers which he might have as a leader of BNP in terms of BNP Constitution, to vary or veto the outcome of the aforesaid elections.
The constituency elections to be held must be conducted by secret ballot. The voters must not be subjected to the voting manner that exposes them to intimidation and other electoral malpractices such as lining behind the candidate of your choice or showing by hand or any gesture that a voter has or intends to vote of any particular candidate. In all respects the conduct of the elections as ordered by this court must be in accordance with the constitution of BNP in so far as it is consistent with the 1993 Lesotho constitution. In terms of section 20(l)(b) constitution of Lesotho 1993, "Every citizen shall enjoy the right to vote or stand for election at periodic elections under this constitution and under the system of universal suffrage and secret ballot."
The second respondent should forthwith or at least within 48 hours of receipt by him of the election results, forward the name of the duly elected candidate to the Independent Electoral Commission.
Independent Electoral Commission is hereby ordered to register forthwith such
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candidate as duly nominated by First respondent and/or on its behalf and publish such nomination accordingly.
11. Each party must bear its own costs.
K.J.GUNI
JUDGE
May, 1998
For the Applicant: Mr Mosito and Metlae
For the Crown: Mr Ntlhoki
