BAP’s legal battle against Kibane puts PR system on trial

Can an MP jump ship? Landmark court decision on floor-crossing looms

‘MATHATO SEBOKA

MASERU – The Basotho Action Party (BAP) has launched a high-stakes legal battle to oust its Proportional Representation (PR) Member of Parliament (MP), Tello Kibane, alleging he has effectively defected to the ruling Revolution for Prosperity (RFP), a move that threatens to redefine the rules of floor-crossing in the National Assembly.

The case, filed at the High Court last Monday, centres on whether an MP who registers with a new party – while still holding a seat under their original party’s ticket – has legally “crossed the floor” and must forfeit their position.

The BAP, led by Professor Nqosa Mahao, has been plagued by internal strife since his dismissal from the RFP-led coalition government. Kibane is one of four PR MPs who refused to follow Mahao out of government, creating a persistent internal crisis for the party.

BAP secretary general, Lepolesa Makutoane, argues that Kibane’s alleged registration with the RFP in his home constituency of Peka, coupled with his failure to renew his annual BAP membership or attend party meetings, constitutes a clear resignation and violation of the electoral law.

“This isn’t just about joining another party, he has effectively resigned,” Makutoane stated.

“The court has jurisdiction here, not the Speaker. The Speaker’s role is to implement the court’s decision, not to make his own.”

The case hinges on the interpretation of the National Assembly Electoral Act of 2011. Section 188 (3) mandates that a PR MP must vacate their seat if they resign from their party or cross the floor. However, the legal definition of “crossing the floor” for a PR MP, who owes their seat to the party list and not a direct constituency vote, remains a contentiously grey area.

Kibane, however, remains defiant.

In a media interview, he dismissed the allegations, insisting he is still a BAP member.

“If I wanted to change, I would make it known,” he said, curiously praising his party’s decision to take the matter to court.

This case echoes recent political dramas in the August House. A ruling in February 2024 allowed United for Change (UFC) MP, Mohlominyane Tota, to sit with the opposition despite his party’s pro-government stance, leaving the UFC feeling unrepresented.

The precedent most worrying for the BAP is that of former Basotho National Party deputy leader, Chief Joang Molapo. After being expelled for supporting another party, he remained in parliament for the full term on a BNP ticket, as there was no legal mechanism to recall him.

The court’s decision in the Kibane case is now highly anticipated. It will provide a critical test for Lesotho’s political system, determining whether PR MPs are “free agents” who can follow their conscience or party agents whose seats belong to the party that won them.

The ruling is expected to have far-reaching consequences for political stability, party discipline, and the very meaning of representation in Lesotho.

Voters and political parties across the spectrum await a judgment that could finally close a loophole that has long undermined the nation’s proportional representation system.