Independent Electoral Commission v Minister of Local Government and Chieftainship (CONSTITUTIONAL CASE 9 of 16) [2016] LSHC 8 (5 December 2016)

IN THE HIGH COURT OF LESOTHO Held at Maseru In the matter between: Constitutional case No.9/16 INDEPENDENT ELECTORAL COMMISSION APPLICANT And THE MINISTER OF LOCAL GOVERNMENT & CHIEFTAINSHIP 1ST RESPONDENT THE MINISTER OF LAW & CONSTITUIONAL AFFAIRS 2ND RESPONDENT THE ATTORNEY-GENERAL 3RD RESPONDENT CORAM: CHAKA-MAKHOOANE J MAKARA J SAKOANE J DATE OF HEARING: 28 NOVEMBER, 2016 DATE OF JUDGMENT: 5 DECEMBER, 2016 _____________________________________________________________ _____________________________________________________________ JUDGMENT SAKOANE J: I. INTRODUCTION [1] The applicant is a constitutional body created in terms of the Second Amendment to the Constitution (Act No.7 of 1997 hereinafter referred to as the Second Amendment). The preamble to the Second Amendment states, among others, that it is: “An act to amend the Constitution so as to provide for an Independent Electoral Commission, its composition, powers and functions and, consequently, the Constituency Delimitation Commission, to abolish the office of the Chief Electoral Officer…” to abolish [2] It is a replacement of the Chief Electoral Officer which was an office managing elections to the National Assembly but placed in the public service. The applicant is placed outside the public service and its remit covers elections both to the National Assembly and Local Government Councils. Institutional independence and powers [3] The powers, duties and functions of theapplicant appear under section 66A provided by the Second Amendment to the Constitution are these: “Powers, duties and functions of Electoral Commission. (1) The Electoral Commission shall have the following functions – (a) to ensure that elections to the National Assembly and local authorities are held regularly and that every election or referendum held is free and fair; (b) to organize, conduct and supervise, in an impartial and independent manner, elections to the National Assembly and referenda under the provisions of the Constitution and any other law; (c) to delimit the boundaries of constituencies in accordance with the provisions of this Constitution and any other law; (d) to supervise and control the registration of electors; (e) to compile a general register of electors and constituency registers of electors for the several constituencies and to maintain such register or registers up to date; (f) to promote knowledge of sound democratic electoral processes; (g) to register political parties; (h) to ascertain, publish and declare the results of elections and referenda; (i) to adjudicate complaints of alleged irregularities in any aspect of the electoral or referendum process at any stage other than in an election petition; and (j) to perform such other functions as may be prescribed by or under any law enacted by Parliament.” [4] The institutional independence of the applicant is guaranteed by section 66C as follows: “(1) The Electoral Commission the performance of its functions, be subject to the direction or control of any person or authority.” shall not, in Powers of Parliament to enact laws necessary for elections [5] It is relevant and important to point out that the Second Amendment also provides for powers of Parliament to enact laws necessary for the conduct of elections thus: “84A. Parliament may, subject to the provisions of this Constitution, enact such laws as may be necessary for the purposes of this Chapter, including laws for the registration of electors, the conduct of elections, the the Electoral powers, duties and Commission and regulation of political parties.” functions of registration and The impugned law [6] It is common cause that the below-mentioned impugned section 23 of the Local Government Elections (Amendment) Act No.5 of 2016 has been enacted pursuant to Parliament’s powers under section 84A above. The impugned subsections read as follows: “23. to (1) For the purpose of an ordinary election of members of a Council pursuant to section 65 of the Local Government Act 1998 or a by-election of members fill a vacancy caused by death, resignation, dissolution of a Council or otherwise, the Prime Minister shall, acting on the advice of the Minister responsible for Local Government, proclaim, and may extend or postpone, the day on which the Local Government elections are to be held. (2)……. the (3) The proclamation shall be directed Commission and shall be in accordance with Form 2 Schedule 1.” to [7] The applicant’s complaint is that these impugned subsections are unconstitutional for the following reasons: “i) ii) It removes the power of fixing the date from a neutral body and confers it on the Prime Minister and the Minister. therefore be the Prime Minister and the Minister are Both conflicted in that they have a direct interest in the elections and may influenced by considerations of such personal or party political interest like the level of preparedness for an election or the desire to take their adversaries by surprise, in fixing the date. This is contrary to the letter and spirit of section 66A (1) (a) of the Constitution of Lesotho, 1993. iii) Section 23 authorizes the Prime Minister to give directions to the IEC, contrary to the provisions of section 66C of the Constitution of Lesotho, 1993.” The dispute [8] The crisp issue for determination is whether the applicant has constitutional and legislative power to promulgate a date for elections. If so, whether Parliament has breached the Constitution by giving such power to the Prime Minister under section 23 of the Local Government Elections (Amendment) Act No.5 of 2016. [9] Mr. Mohau KC for the applicant, contends that the applicant has such power under section 66A (1) (a) of the Constitution derivable from the words “to ensure”. I say derivable because Mr. Mohau KC concedes that there is no express or explicit conferment of such a power. The submission made is better understood if quoted: “10.2 It is submitted that the IEC can only ensure the holding of elections regularly if the power to fix dates of such elections reposes in it. The IEC cannot warrant or guarantee regular elections when it has no power over the determining of such elections or even the power of control over the authority which is now clothed with the power of fixing the date of local government elections.” [10] Mr. Teele KC for the respondents, counters by contending that “to ensure” is not synonymous with “promulgate”. “To ensure” only means to guarantee that a thing will happen or will be done. As put in written submissions: refers regularly It cannot be so then that to ensure that elections are held to decisional process of promulgating the date of an election. It is submitted that to ensure as used in the section simply refers to providing certainty that when the exigency giving rise to an election, and that election is duly promulgated, then capacity for such an election is ready and put in place by the Commission.” “5.7 II. ANALYSIS [11] Since the resolution of the dispute turns on the suggested implied constitutional power of the applicant to fix an election, it is imperative to enquire as to the existence or otherwise of such a power. The question to answer is whether is “Can the applicant not properly deliver free and fair elections without the power to fix and election date?” [12] The words “ensure” in section 66A (1) (a) of the Second Amendment 1997 is a verb which, according to the Concise Oxford English Dictionary 10th Edition means “to make certain that (something) will occur or be so”. In context, it therefore, means that the applicant must make certain that elections are held regularly and are always free and fair. Sub-provisions (b) to (i) are a catalogue of the duties and functions of the applicant which it has to perform in order to ensure regular, free and fair elections. None of the duties and functions include the fixing or promulgation of an election date. [13] If the power contended for is concededly not expressly conferred, the question is whether it is impliedly conferred for purposes of managing Local Government elections. The test for implying powers is whether such powers are reasonably necessary for the main purpose: Johannesburg Consolidated Investment Co Ltd, v. Marshalls Township Syndicate, Ltd 1917 AD 662 at 666-667; Lekhari v. Johannesburg City Council 1956 (1) SA 552(A. D.)at 567 A-C [14] On this test it cannot be that the applicant is disabled from preparing for, organizing and managing the electoral process without the power to fix an election date. If that were so, then the applicant would also not be able to manage the National Assembly elections in respect of which it does not have a power to fix an election date. In my respectful view therefore, the power contended for by the applicant is not reasonably necessary for the management of the electoral process. The applicant can still manage the process effectively and deliver free and fair elections without such a power. After all, the power was conferred by Parliament under the repealed section of the 1998 Elections Act and I do not find any constitutional bar for Parliament to take it away. [15] If there is any power to fix an election date, such can conceivably be added to the catalogue by Parliament ‘s prescription pursuant to a law enacted under section 66A 91) (j) or section 84A of the Constitution as introduced by the Second Amendment. Such power was prescribed forunder section 23 of the Local Government Elections Act No.9 of 1988. It provided as follows: “Writ of election 23 (1) For the purposes of every ordinary election of members of Councils and for the purposes of the election of members to fill vacancies caused by death, registration or otherwise the Electoral Commission shall issue a writ or writs to Returning Officers. Every writ shall be forwarded to the Director of Elections for transmission to the Returning Officer to whom it is addressed. (2) Every such writ shall (sic) as in Form 2 Schedule I and shall specify the days, which shall not be less than three, hereinafter referred to as “the nomination period”, the place of nomination, and the day upon which a poll shall be taken if necessary. (3) Upon receipt of such writ the Returning Officer shall proceed to hold the election in the manner hereinafter provided.” [16] In 2016, Parliament decided to repeal the above section and to enact the impugned one in its place. It is contended that this impugned section is unconstitutional in that it takes away the applicant’s constitutional power to fix an election date and gives it to the Prime Minister who, given his status as leader of the ruling political party that will be in the electoral race, is likely to fix a date that can enhance the electoral fortunes of his party. [17] There is no constitutional provision for the power contended for in respect of General Elections. It is the King who promulgates a date for elections. This His Majesty does pursuant to section 84 (1). By convention, the timing of such elections and promulgation of the date are made within the exercise of prerogative powers and discretions conferred on the Sovereign: Francis v. Attorney General [2003] 4 CHRLD 265. It is not suggested, and it can never be, that the applicant has not been able to deliver free and fair elections because of the power to fix an election date reposes in His Majesty. [18] General Elections may be called at any time before the end of the period of five years constituting the maximum period of the life of Parliament. In Westminster constitutional practice, the Prime Minister can ask for dissolution of Parliament and holding of snap- elections and thereby influence their timing. It has not been suggested (and we are not aware of any authority to this effect) that this, on its own, constitutes an impermissible diminution of the constitutional imperative for regular, free and fair elections in a democracy – be it a Republic where the head of State and Government is an elected politician or a constitutional monarchy like ours where the head of Government is an elected politician. [19] There is, therefore, an air of exaggeration of the danger of electoral unfairness and unfreenessif the Prime Minister is clothed with the power to pick an election date given his political status as the leader of a competing political party. There are, at least, two important factors that militate against such a dangereventuating in irremediable problems. Firstly, the impugned section 23 (1) imposes a duty on the Prime Minister to pick an election date acting on the advice of the Minister responsible for Local Government. This is the Minister who is given powers under section 65 of the Local Government Act No.6 of 1997 to dissolve a Council “after due inquiry” with the approval of the Prime Minister and to direct the holding of elections within ninety days or such other period as may be determined by the Prime Minister with the concurrence of the Minister. Secondly, the exercise of such a power is open to challenge by way of judicial review on the traditional grounds of illegality, irrationality or procedural impropriety if it impacts negatively on the ability of political parties candidates to meaningfully participate in the contest: Patriotic Front – ZAPU v. Minister of Justice, Legal and Parliamentary Affairs [1986] LRC (Const) 672 (Zimbabwe) [20] It is important to bear in mind that the duties and functions of the applicant are a constant in a process and not an event. They must be discharged and performed inside and outside the election season so as to provide the nation with an ever-ready electoral machinery. It is for this reason that I find the following dicta of the Supreme Court of India in N. P. Ponnuswami v. Returning Officer Namakkal Constituency and Others 1952 S. C. R. 218 at 227-228 apposite: “It seems to me that the word “election” has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of expression “conduct of elections” in article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including article 329 (b). That the word “election” bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury’s Laws of England in the following passage under the heading “Commencement of the Election”:- ‘Although the first normal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is “reasonably imminent”. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when “the conduct and management of” an election may be said to begin. Again, the question as to when a particular person commences to be candidate is a question to be considered in each case.’ “The discussion in this passage makes it clear that the word “election” can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.” [21] I am not persuaded that the power contended for by the applicant is necessary for the discharge of its duties and performance of functions under section 66A (1). Is there any interference with applicant’s independence? [22] As alluded to earlier, the applicant’s functional independence is constitutionally protected under section 66C. No person or authority can control or direct the applicant in the performance of its functions – be they section 66A (1) functions or those provided by Parliament pursuant to section 84A. Parliament cannot even take away or re- assign any section 66A (1) functions. But, in my opinion, those directly conferred by Parliament can be taken away or re-assigned. This would not constitute a direction or control over the applicant by the repository of the re-assigned functions. [23] By fixing an election date and thereafter directing it to the applicant, the Prime Minister is not thereby subjecting the applicant to his direction or control. Once a proclamation is issued, the duties of the applicant to compile an elections and to issue writs of elections under section 21A of the Local Government Elections (Amendment) Act No.4 of 2011 and the impugned section are none of the business of the Prime Minister and the Minister. [24] Mr. Mohau KC contends that the applicant’s independence in respect of General Elections is not impaired by His Majesty’ proclamation because it is made on the advice of the Council of State which is politically neutral. But the issue is not who advises who to proclaim but the effect of the proclamation on the functional independence of the applicant. If the applicant does not consider His Majesty’s proclamation an interference, why should the consideration be different if the proclamation is that of the Prime Minister? I do not find any rational basis for distinction between the effect and impact of the two proclamations on the independence of the applicant. It seems the concern is the political status of the authority proclaiming and not the proclamation itself. III. DISPOSITION [25] For the aforegoing reasons, I do not find anything unconstitutional about the impugned section. I would, therefore, dismiss the application. [26] This being a matter of public importance to the electoral system of this Kingdom, I consider that each party should pay its own costs. [27] Order 1. 2. The application is dismissed. Each party to pay its own costs. ________________________ S. P. SAKOANE JUSTICE _________________________ L. CHAKA-MAKHOOANE JUSTICE ________________________ E. F. M. MAKARA JUSTICE I agree I agree For the applicant: For the respondents: Adv. Mohau KC Adv. Teele KC 15