Commentary on the case of Independent Electoral Commission v The Minister of Local Government and Others (2016)

• Jurisdiction: South Africa
• Record Number: lesotho_v25_n2_a6
• Published date: 31 May 2017
• Date: 31 May 2017
• DOI: 10.10520/EJC-ea19511de
• Pages: 179-191
• publishedBy: National University of Lesotho
• Author: H. Nyane

COMMENTARY ON THE CASE OF INDEPENDENT

ELECTORA L COMMISSION V THE MI NISTER OF LOCA L

GOVERNMENT AND OTHERS (2016)

‘Nyane, H. ⃰

INTRODUCTORY B ACKGROUND

In December 2016 the Hig hCourt (Constitutional Division) of

Lesotho handed down the decision in the case ofInde pendent

Electoral Commission v The Minister of Local Government and Others.

1

The decision is fairly unknown but has far-reaching i mplications for

the development of constitutional de mocracy in Lesotho. The

matter concer nedthe much acclaimed independence of the

Independent Electoral Commission (IEC) as the electi on

management authority in Lesotho. F or the first ti me in the history

of t he current Constitutio n of Lesotho, the IEC sought t o assert its

independence agai nst the executive branch of g overnment. Since its

formation in 1997, t he IEC has always been p erceived as an adju nct

of the exe cutive branch of g overnment. Formation of the IEC was

the landmark shift from the “executive-based model” of election

management where elections were ma naged from t he office of t he

Prime Minister, to an “independent expert model”.

2

Following the

* LLB(N UL), LLM(NWU ), LLD(UNISA ), HOD Publ ic Law, NUL,

hnyane@ yahoo.co.uk.

1

Const. Ca se No. 9 of 2016 (unreported).

2

For the various models o f election mana gement bodie s (EMB s) see

Lopez-Pi nto, R. Electoral Management Bod ies as Instituti ons of Governance ,

Bureau for Development Policy: United Nations Develo pment

Program me:2000 at 20, The author sa ys,

In recent years, these bodies in various countries have been

classified according to diffe ring criter ia. One is their recr uitment.

EMBs are sa id to follow a “governmental a pproach” wh en

elections are run by regular civil servant s; a “judicial ap proach”

when judges are select ed to ad minister election s; a “mul ti-party

approach” when party repr esentatives com pose the electoral