THE ARGUMENTS ON BOTH SIDES OF THE IEC DISPUTE

1. Per ref, the GOL and opposition parties are locked in a
dispute regarding the extension of the tenure of two of the
three current members of the Independent Electional Commission
(IEC). Through a presentation by government officials at a
recent donors' forum and related documents, post has more
information on the details of the legal and policy arguments
advanced by both sides.



2. At a March 30 donors' meeting, invited speakers Deputy Prime
Minister Lesao Lehohla and Minister of Justice Refiloe Masemene
stressed the importance for continuity in the IEC during the
build-up to national elections during the first half of 2007.
Losing two experienced commissioners (both had worked on the
2002 elections) would handicap preparation efforts; the third
commissioner had been appointed after the previous elections.
The Minister added that the two IEC members had been selected
for three-year terms of office, per the Constitution. As a
subsequent amendment now pemits 5-year terms, extending the
current Commissioners' time in office for two years would still
fit within the limits of the current law. Lehohla noted that
the opposition political parties had rejected both the original
extension proposal and also the GOL's offered compromise of
retaining only one of the two IEC officials.



3. Lehohla and Masemene provided a copy of the Attorneny
General's legal opinion supporting the extensions. While the
Constitution at the time of the original appointments permitted
only two three-year terms in office, a subsequent amendment
allows five-year terms. The legal presumption against
retroactive application of laws may be rebutted, however, if the
new legislation 1) is substantially similar to the pre-existing
law and/or 2) "operates to the benefit of a subject/s." The
GOL argues that the new provisions are identical to the previous
law, except for the term of office specified; in addition, the
amendment was clearly intended to benefit IEC members, since it
does not differentiate between commissioners appointed before or
after the new law took effect and expands the rights of (i.e.,
benefits) IEC members.



4. A legal opinion commissioned by the main opposition party,
the BNP, on the other hand, contends that that the amendment
language of "renew" and "reappoint," the terms used in previous
legislation, means that the extending the terms of office
requires the full political process involving the political
parties and Council of State. Thus, such extensions are
entirely separate legal actions from the original appointment
and the consent of the political parties is needed. The opinion
also notes that if Parliament had wanted to allow automatic
extensions of commissioners serving three-year terms, the new
amendment could have explicitly so stated.



5. COMMENT: With the government and opposition at loggerheads
on this matter, Lehohla and Masemene said the GOL intends to
take this matter to the Council of State, a body consisting
mainly of government officials, some of whom are appointed by
the Prime Minister. Considering the group's composition and that
it operates by simple majority, endorsement of the GOL's
position is virtually certain. The government's arguments for
continuity and experience in the IEC make good sense; the
Commissioners' expertise will be important in ensuring that the
2007 elections are a repeat of the free, fair, and peaceful
polling in 2002. Also needed for successful elections will be
the vigorous and full participation of the political opposition,
which, it is hoped, will not be affected by the row over the
IEC.

PERRY