CIV/APN/187/85
IN THE HIGH COURT OF LESOTHO
In the Application of
BENNETT MAKALO KHAKETLA Applicant
v
THE HONCUPABLE PRIME MINISTER 1st Respondent
THE CHIEF ELECTORAL OFFICER 2nd Respondent
THE ATTORNEY-GENERAL 3rd Respondent
REASONS FOR JUDGMENT
Delivered by the Hon. Chief Justice Mr Justice T S. Cotran on the 21st day of August 1985
This urgent application by Bennett Makalo Khaketla, the leader of the Marematlou Freedom Party, in which he sought High Court orders
against the Prime Minister, the Chief Electoral Officer and the Attorney-General, was dismissed after a night sitting on the 12th
August 1985. The question of costs was reserved I said reasons will be given on 21st August 1985 and these now follow –
The orders that were sought were as follows –
"Declaring that the calling for nomination of National Assembly Candidates for the General Elections before the voters roll and electoral lists have been published and scrutinized violates the Electoral Act of 1968 (as amended).
The First Respondent be directed to postpone the date for nomination of electoral candidates until the voters roll has been published and scrutinized as provided for in the Electoral Act of 1983 (as amended)
Directing the First Respondent to postpone the date of the General Elections until the voters roll and electoral lists have been scrutinized to enable electors to be in a position to make proper nominations
Directing the Respondents to pay the costs of this application"
2
The facts alleged were –
"when the date of elections which is the 17th
and I8th September 1985 was announced there was no voters' roll The voters' roll is still not complete"
The date of the general elections was announced in Government Notice No.68 of 1985 in a Gazette Extraordinary (No 35) dated Thursday 1st August 1985 and was to take place on 17th and 18th September 1985.
"despite the fact that there is no voters' roll
on the 7th of August 1985 the first respondent announced that the nomination of candidates for the elections will be on the 14th August 1985 and the period for nomination can only be extended by 30 minutes"
The nomination date was announced in Government Notice No.82 of 1985 in Gazette Extraordinary (No.39) dated 8th August 1985 to take place on 14th August 1985 between 9 a.m and 12 noon extendable if necessary by thirty minutes.
Mr Kheketla swears and Mr Maqutu argues that these notices fringe s 13(4) of the Electoral Act 1968 s 13(5) s.13(6) s 17 S 20 s 21(3) s 22 s 23 s 24 s 25 s.25(5)(c) s 26(2)(b) s.26(3) Mr. Khaketla further swears and Mr Maqutu further argues that the first two respondents have violated the applicant's human rights as enshrined in the Human Rights Act in s.17(1)(b)
3
The Chief Electoral Officer and the Attorney-General deny the allegations and swear that the law has been complied with and that whatever lists the applicant talks about were available.
It is not necessary to quote all the sections cited by Mr Maqutu suffice it to say that by Legal Notice 31 of 1985 in Government Gazette Extraordinary dated Tuesday 5th March 1985 (No.12) a general registration of electors was announced in the sixty constituencies of Lesotho as delimited in 1969 such registration not be construed under any circumstances as a delimitation for the purposes of the general election and without prejudice to an order of the Constituency Delimitation Commission appointed under s.17 of the Parliament Act 1983. The period for general registration was three months which ended on 11th June 1985 SS 13(4), 13(5), 13(6), 20, 22 23, 24 and 17 of the Electoral Act 1968 are not relevant to the issues before me S.13 is concerned with checking of applications for registration and directs Electoral Officers and the Chief Electoral Officer what to do in various circumstances. If no application for registration was disallowed the necessity of compiling a list on terms of subsection 5 falls down from which it follows that there is nothing which the applicant can be furnished with, even if he asked, sections 20 and 22 make provisions for the particulars to be shown in the electors' lists, for correction of errors, for lists of additions of individual electors to various matters in connection with registration and the manner in which the Chief Electoral Officer should resolve them, s 24 provides for reference of a dispute to a judge in chambers for a decision, s.17 deals with compilations and amendments of the registers. The Act presupposes a continuous process people coming of age, or dying, or becoming disqualified etc We do not know what the Chief Electoral Officer, when he was appointed in December 1984, inherited but assuming nothing survived from 1970 and nothing was done to update the old registers between 1970 and 1984 it does not
4
mean that the general registration that has been ordered in March 1985 is invalid.
S.21(1) of the Electoral Act 1968 provides –
"The electors list as prepared in accordance with the provisions of subsection (1) of section nineteen shall be printed or roneoed not later than one month before every general election or election in a constituency to fill a casual vacancy in the National Assembly, as the case may be, and at such other times as the Chief Electoral Officer considers necessary, or as the Minister may direct"
This section throws us back to s 19(1) of the Act which provides that –
"The Chief Electoral Officer may on completion of a general registration in a constituency, and shall after the commencement of a suspension of registration in respect of a constituency, prepare an electors list in respect of such constituency from the constituency register in respect of that constituency"
The combined provisions are clear and allow of no ambiguity The general registration in all the sixty constituencies in Lesotho as delimited in 1969 is presumed to have been achieved at the end of the day on the 11th June 1985, and by the nature of things a constituency register is presumed to have come into existence when the registration exercise was finished omnia praesamuntur rite esse acta. If the applicant's case is that the Chief Electoral Officer and Electoral Officers registered nobody, or that they registered the names of fictitious persons, or registered only those persons whom they fancy, the onus is on him to prove this and he has not been able to do so on these papers The Chief Electoral Officer is under no obligation to prepare an electors' list after general registration because s 19(1) uses the word 'may' and he has a discretion in the matter What he did immediately on close of registration on the 11th June is not clear but he had been warned in the gazette that that registration was without prejudice to the order of the Constituency Delimitation Commission of
5
1985 which was then engaged in reviewing the old constituency boundaries When the new review of constituency boundaries was announced the Chief Electoral Officer had to make the necessary adjustments in terms of s.18. It is only then that copies of the electors' list could be available The Chief Electoral Officer becomes bound by law to roneo or punt the lists not later than one month before every general election The dates of the general elections are the 17th and 18th September 1985. Month means "calendar" month (Interpretation Art 1977 s.3) so that the Chief Electoral Officer's legal obligations take him to the 16th August 1985 in respect of electors in the constituencies that go to the polls on the 17th September and the 17th August 1985 in respect of electors in the constituencies that go to the polls on the 18th September 1985 The applicant sought relief before this obligation arose When the matter was argued on the 12th the 1985 constituency electors' lists were in front of counsel and attorneys There was no evidence that the applicant asked for and was refused an inspection of the registers after registration closed on 11th June 1985 for he surely would have asked the Courts for relief
Nomination day under s.25(1)(b, as I stated earlier, was fixed for Thursday 14th August 1985 which was two and three days respectively before the period specified in s 21 It is clear therefore that there was no infringement of s.25 of the Act.
s.26(3) and s 26(4) of the Act require that every candidate for election for any constituency shall be proposed by at least five hundred persons enrolled on the electors' list for the constituency named in a written document and delivered to the returning officer on (or before) nomination day. The applicant's argument, and in essence his complaint, is that it is impossible for him and his party to get five hundred names unless he and his party have sufficient time to
6
peruse the electoral list for every constituency to see if the names of his or his party's supporters appear in the list, but with respect, this contention is unsound. The law says he can have these lists only a month before the election date. The list of electors in a constituency will not tell Mr Khaketla how this or that elector is going to vote By looking at the list he cannot say who is going to support him or his party's candidates Upon the amendment of the section to require five hundred proposers instead of two made it incumbent on the applicant's party to gear its constituency machines to the amended law, canvas for, and achieve the desired end, by or before nomination day. To hold otherwise would tantamount to alter clear provisions of the law by a dubious interpretation.
The applicant maintains that his human rights have been violated. I am not persuaded that there was such violation The Human Rights Act in Lesotho is at par with other laws not superior to them. I would respectfully refer to a recent Judgment of this Court involving the same parties (C1V/APN/145/85) which was delivered on the 24th July 1985 at p.6 and 7
As I intimated earlier the application was dismissed but I am now ready to hear arguments about costs.
CHIEF JUSTICE
21st August 1985
For Applicant Mr. Maqutu (Someone else noted the Judgment
Costs to be put before me on a date agreed to between both attorneys).
For Respondents Mr. Muguluma
