MASERU – Independent Electoral Commission (ICE) Chairperson Mahapela Lehohla and Government Secretary (GS) Moahloli Mphaka this week traded slurs over the commissioners’ contracts and unpaid benefits.
Lehohla fired the first salvo labelling Mphaka “a loose cannon” before a miffed Mphaka branded the retired judge “pathetic”.
The spat, which has been playing out in public since the turn of the year, escalated this week when Lehlohla insisted the under-siege commissioners have a legitimate expectation their contracts would be extended despite government attempts to dim their hopes.
He said government’s failure to unequivocally pronounce itself on the matter, at law, suggested it had consented to extending their contracts which expired in January.
But Government Secretary (GS) Mphaka yesterday rubbished Lehohla’s statement, adding the retired judge must “go home”.
This after Lehohla had labelled Mphaka a “loose cannon”, for purportedly bungling the process of renewing the contracts.
“The process of hiring new commissioners is very long and when towards expiration of our contracts there was no advertisement of our positions, we formed a legitimate expectation that our contracts are going to be extended.
“Legitimate expectation is a very important principle which when defeated, it gives a person locus standi to seek judicial review. To this day, the positions have not been advertised. We cannot leave the office and create a vacuum,” Lehohla added.
But a bristling Mphaka hit back, saying: “He must do the honourable and go home. His contract has expired. He is learned judge and knows law better. Why is he still in the office when his contract has expired and has not been renewed?
“If he hopes that government will eventually renew the contract, that is fine, but in the meantime he must get out of office. He even has the guts to suspend IEC officers when he is the one who is supposed to go home.”
The IEC is an independent election management body, established by the constitution which, among others, conducts elections to the national assembly and local government councils and undertakes and promotes research into electoral matters.
Lehohla, a retired Chief Justice, told Public Eye yesterday that their continued stay at IEC was within the bounds of the law and constitution. “There cannot be a vacuum. We cannot have an empty commission,” he said.
“I cannot irrationally refuse to leave office. I am not in this office illegally. I am a former judge and I used to deal with people who wanted to occupy offices unlawfully, I cannot do that myself,” he added.
Lehohla further told this paper that last year before their contracts expired, the three commissioners – himself, Dr Makase Nyapisi and advocate ‘Mamosebi Pholo – wrote Mphaka and expressly communicated their desire and availability to remain in office and serve for another five years.
“We had a right to do so. He responded and informed us that government has decided against renewing the contracts. We were surprised by this response, not by its contents as such but by the fact that the GS usually does not respond to our letters and we were amazed that this time he did and we became suspicious,” he said.
Upon further investigation, he added, they found that cabinet did not know about Mphaka’s letter.
“As you may be aware there is no right in law to be reappointed to serve a second term as a member of the IEC. Renewal as expressed by Section 66(7) of the Constitution is discretionary,” Mphaka had noted in the three separate letters to each of the commissioners.
He added: “It is noted that in your letter you expressed your desire to continue serving for another term. However, I am directed to inform you that the government has decided not to accept your request for re-appointment as a commissioner of the IEC for a further five-year period.
“The outstanding matters relating to your benefits and privileges are now receiving the attention that they deserve. I wish to take this opportunity to wish you all the best in your future endeavours.”
Lehohla said when they told political parties’ leaders during a meeting about Mphaka’s letter, they were also surprised.
“Even Ntsekele (Samonyane) who was representing ABC (governing All Basotho Convention) did not know about this letter, yet he is a minister. That is when we learned that the only minister who knew about this was the then minister of law Lebohang Hlaele because he was the minister responsible for IEC.
“Ntsekele and Hlaele agreed that GS should withdraw that letter. Hlaele’s consent that the letter should be withdrawn was based on an ill-advised understanding that such a letter should be written by the appointing authority. However, the bottom line is that it was agreed that the letter should be withdrawn,” Lehohla said.
The fact that Mphaka has not withdrawn the letter was proof that he is a loose cannon, Lehohla further indicated.
“I spoke to Prime Minister Thabane on two occasions about this issue. He also was surprised by Mphaka’s letter. Only one minister, Hlaele, knew about this letter,” he said.
Efforts to get comment from Hlaele yesterday were also unsuccessful.
Ntsekele yesterday said: “I was part of a meeting in which commissioners gave a report to political leaders. That is when they revealed that they had received a letter from GS.”
He said the political leaders, “including myself as representative of the ABC”, were not impressed with Mphaka’s letter.
“The leaders expressed their desire to have the commissioners’ contracts renewed because we believe they performed well during their term. Mr Hlaele as minister responsible for IEC explained to the leaders that GS’s letter was just an official procedure and did not mean that government will not renew the commissioners’ contracts. That is all I know,” he said.
Two successive snap polls run by the current commissioners have been acknowledged as free and fair by international bodies.
The three commissioners; Lehohla, Nyaphisi and Pholo, whose contracts expired in January, came under the spotlight earlier this month when they abruptly suspended IEC director of elections Dr Letholetseng Ntsike for alleged insubordination.
Ntsike was suspended after she refused to obey an order to pay the commissioners’ benefits. She reportedly told them that she would not pay their benefits until they had new contracts or at least letters from the appointing authority confirming they should remain in office.
According to Lehohla, Ntsike’s refusal to pay their benefits was motivated by Mphaka’s letter, among others.
He also told this paper that there was a stipulation in their contracts and in law that if upon expiry of their contracts, and “there is no express statement made by the employer” as to what will govern future dealings between the parties, “then we can reasonably presume that there is consent to a continuance of the engagement”.
According to the law, a member of the commission can hold office for such term, being not more than five years, and may be reappointed for only one further term not exceeding five years.
He indicated that even before they were appointed, their predecessors had remained in office until the recruitment process was complete.