1 Introduction and Background
The case revolves around intersection between section 20 of the Constitution of Lesotho, 1993 which among other things provides for participation of citizens, either directly or through freely chosen representatives in the conduct of public affairs, and section 66(4) which provides the process for selection of the names of persons to be submitted to the King by Council of State and the process to be followed by all registered political parties until the names of the candidates to be proposed to the Council of State are acquired. The case started life in the High Court in the form of an urgent ex parte application in which the TRC and other appellants alleged denial of the right to participate in the ‘public affairs’ of Lesotho in the selection of candidates for possible appointment as members of the Independent Electoral Commission (the IEC).
TRC alleged that its exclusion was ‘undemocratic’ and ‘draconian’ and therefore ‘illegal and unconstitutional’ and ‘compromised the entire process’. That, it is said, violated section 20(1)(a) of the Constitution. Among a host, the respondents countered that the first and third appellants’ reliance on section 20 is misplaced because that section bestows rights only on natural persons who alone can be citizens of Lesotho. The respondents also asserted that the right of Basotho to vote does not include the right to participate in the selection of the members of the Independent Electoral Commission (IEC).
The High Court held that the nature of the relief sought by the appellants was such that it could have been sought by placing reliance on rule 50 of the High Court Rules, 1981 (review) instead of proceeding under the Constitution Litigation Rules. The High Court also held that section 66 of the Constitution has created a procedure for the selection of candidates and reposing it in the Council of State and the registered political parties to the exclusion of others such as the TRC.
The appellants appealed against the judgement and Order of the High Court sitting as the Constitutional Court and persist that they had made out the case for the relief they sought in the High Court.
2 Issue on Appeal
The issue before Court was whether the Constitution of Lesotho recognises the right of civil society or private citizens to participate in the selection process of members of the Independent Electoral Commission (IEC).
The Court dismissed the appeal with no order as to costs. For purposes of locus standi, it is important to note that the Court did not enter the debate on whether the right to participate in the selection process of commissioners of the Independent Electoral Commission (IEC) inheres only in natural or juristic persons as it was not necessary to the outcome of the appeal. TheCourt proceeded on assumption that just for purposes of the present case, without deciding , that the right also extends to juristic persons.
First, the Court held that whether the right exists will depend on the nature of ‘public affairs’ that is desired to be participated in and whether the form in which participation is sought is congruent with the activity concerned. The Court gave two examples of public affairs; making laws and debates in the houses of parliament and appointment of judges and rhetorically asked whether one can plausibly argue that citizens have the right to ‘directly’ participate therein. Secondly, the Court held that the right, such this is subject to ‘other provisions’ of the Constitution.
The Court held that section 66(4) the Constitution empowers the registered political parties to select the names of candidates to be submitted. The Court further stated that selection of the candidates for possible appointment as IEC commissioners certainly is ‘public affairs’ being conducted by political parties duly registered with the IEC and representing different shades of public opinion and interest in Lesotho. According to the Court, section 66(4) leaves no scope for direct participation by persons or bodies other than registered political parties.
It was finally decided that section 20 finds no application to the section 66(4) process. It was held that the appellants did not discharge the onus that they are entitled to participate directly in the process initiated by the forum of political parties to give effect to section 66(4).
The Court refrained from the debate on whether the right to participate in the selection process of members of the Independent Electoral Commission (IEC) inheres only in natural or juristic persons. However, the Court proceeded on assumption without making any decision, just for convenience and in order for it to be able to interrogate the right to direct public participation either by civil society organisations or natural persons. The Court held that the right under section 20(1)(a) is subject to ‘other provisions’ of the Constitution and by so saying, it tied the right to direct participation to the public affair in question. This placed the onus on TRC and others to prove that the selection process of the commissioners under section 66(4) is of such a nature that entitles either natural or juristic persons direct participation. This is the burden the appellants failed to discharge and the appeal failed on that basis.
Basically, this landmark holding would have been essential where TRC sought to monitor and observe the proceedings of the process initiated by the forum of political parties. The issue, as according to the Court of Appeal judgement, would have been whether in the interest of transparency, openness and accountability, the selection process of the candidates to be proposed to the Council of State is of a nature that warrants monitoring and observation by the TRC whose primary objects include promotion of good governance, preservation and protection of human rights standards in Lesotho. Selection of the candidates to be proposed to the Council of State is a public affair, TRC’s only duty would have been to discharge the onus that in the interest of democracy, it should have been given an opportunity to observe in furtherance of section 20 even as a juristic person.
Looking at the constitutional issue raised on direct participation, either by natural or juristic persons, the Court of Appeal judgment will be seen as a landmark. The appeal might have not been but it has definitely served to bring constitutional law issues on direct participation to the fore in a way not seen before. The Court had an opportunity to expand and give much substance and perspective to the High Court judgement in Development for Peace Education and Transformation Resource Centre v. The Speaker of the National Assembly and 7 Others Constitutonal Case No.5/2016 which at para. 39 where the court held that “the applicants have locus standi not so much as juristic persons but as a collective or association of citizens of Lesotho ….” The holding of the High Court was a “compromise” but the expansion by the Court of Appeal is such that the only question that should have been asked was whether the nature of the public affair contained in Standing Order No.76 providing for discretionary powers of the National Assembly to facilitate public participation in the legislative processes warranted public participation by the civil societies which launched the application.
Indeed, the Court of Appeal’s decision is an important one in constitutional law terms as it has put into perspective direct participation by essentially relying on the nature of the public affair in question. It is a progressive step further from the traditional stance that the Chapter II human rights envisage rights that are justiciable to humans only not juristic persons or for purposes of this case that section 20 only bestows right to participation only on natural persons. This case departs from that submission as far as section 20(1)(a) is concerned by giving it a contextual interpretation. The implication is that depending on the nature of the public affair in question, even juristic persons can claim participation under section 20.
Mokitimi Ts’osane is currently engaged by the Transformation Resource Centre (TRC) in the Department of Social Justice.