The 2007 General Election in Lesotho: The Application and the Challenges of the Electoral System

Fako Johnson Likoti

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Abstract: The key ingredient of representative democracy is participatory and contested elections which are perceived to have followed a legitimate procedure that translates votes cast into legislative seats. This mammoth task can only be achieved by an appropriate electoral system. It is through this mechanism that elections are formally structured and form a vital component in the achievement of participative democracy. It is therefore important for a country to adopt an appropriate electoral system that can be able to mitigate any election related conflict. Lesotho, like most developing countries, has experienced post election related conflict. The paper argues that, the adoption of mixed member proportional system (MMP) was intended to promote more inclusivity because MMP is known to solve many problems caused by plurality-majority voting systems. Conversely, the application of this model in 2007 election brought more discontent and challenges that were not anticipated. The paper therefore, examines the application of the electoral system in Lesotho's 2007 election and suggests remedies that can be used to ensure that the model delivers intended results.

Introduction

Elections are events intrinsic to democracy-building but do not determine whether the country is a democracy or not. The delivery of regular free and fair elections is one of the standards by which a country's democracy is judged. In fact, elections "perform two fundamental tasks: they confer authorization upon those chosen to represent the electors and they hold representatives to account for their actions while in office."[1] The choice of an electoral system is important for the structuring of the political competition between parties. It is also important with regard to managing elections related conflict. By definition, electoral systems are the mechanisms by which the preferences of citizens are translated into seats in representative institutions. An electoral system is therefore a mechanism that forms the inner workings of any democracy which centers on rules that allocates seats. There are several forms of electoral systems. These include but are not limited to plurality and majoritarian systems, proportional systems, and parallel systems. This study focuses primarily on the mixed member proportional (MMP) system, which forms part of the proportional electoral system that is currently operational in Lesotho.

According to Dieter Nohlen, all electoral systems can be traced back to either one of the two basic principles of representation: the principle of majority representation or the principle of proportional representation (PR).[2] The distinction between these two basic principles is mainly based on their respective political objectives regarding the nationwide electoral outcome. The major political aim of the principle of majority representation is to produce a parliamentary majority for one party. The major political aim of the principle of proportional representation is an accurate reflection of social and political groups in parliament. Since independence in 1966, Lesotho used the majoritarian first-past-the-post (FPTP) system. Nevertheless, there was growing uneasiness within Lesotho polity regarding the apparent exclusive character of this system. This uneasiness was often expressed by post-election discontent from most political parties. It was this unhappiness that probably motivated electoral reforms. Consequently in 1997, Lesotho adopted the MMP model. It would appear that this electoral system was not well understood by both the political parties and the general voters. It has been this lack of understanding of the model that created more challenges than anticipated.

The paper is divided into five sections. The next section below provides a theoretical definition of the MMP model. The second section discusses factors that motivated electoral reforms in Lesotho. The Lesotho MMP system is fully discussed in the third section of this paper. The fourth section focuses specifically on the challenges of the model which were not anticipated with the MMP adoption. These include but are not limited to the legislation, formation of alliances, and the intention regarding the formation of the model. The conclusion sums up the main arguments of the debates and maps out the way forward.

What Is A Mixed Member Proportional System?

Hague and Harrop opined that MMP is a system in which the choices expressed by the voters are used to elect representatives through two different systems-one is a list PR system and (usually) one plurality/majority system-where the list PR system compensates for the disproportionality in the results from the plurality/majority system.[3] These scholars argued further that, on election day, voters receive two ballots. They use one to elect the member of parliament for their constituency using the FPTP system, and they use the other to vote for their preferred party. The second (or party) ballot is used to determine the number of seats each party would receive if the system was fully proportional and thereby determines the proportion of the compensatory seats each party receives.

The party vote is used to elect candidates from the party lists and compensates parties who have won fewer constituency seats than they would be entitled to under pure proportional representation, or who have won no constituency seats even though entitled to under proportionality. Key to this system is that a party must submit both the party list and the PR list to be able to participate in the election conducted under MMP system.

The model provides more accountability and is good at dealing with issues that affect a constituency, but it lacks a good way to create consensus around national issues. This would mean that every electoral system has both limitations and merits. It was these limitations in Lesotho that have created a culture of post-election conflict. This mixed system is currently being used in a number of countries including Germany and New Zealand, and for regional assemblies in Wales and Scotland.

Why Reform Lesotho's Electoral System?

Electoral systems do not exist in a vacuum but are motivated by certain events. Some of these events revolve around intra-state conflict, as was the case in Lesotho. For instance, from 1966 to 1998, the country had experienced election-related conflict. It was this post-election conflict that necessitated the formation of the new electoral system. Since Lesotho's independence in 1966, not a single major party has accepted elections results. This was despite acceptance of the democratic process as a rule binding principle by all political parties. The culture of non-acceptance of elections results appears to be more alive than ever before, regardless of whether the elections were given a clean bill of health. While there are various factors that might have contributed to this behavior, the electoral system appears to have been the most prominent factor behind this conflict. In 1966, after the April elections, the country experienced election-related violence in December; in 1970, a few days after the 30 January elections, violence erupted. After the March 1993 elections, in September, elections violence became the order of the day; in 1998, following elections in May, the country engaged in election related violence in September.

Following the 1998 election-related conflict, political parties identified the first-past -the-post electoral system as exclusionary and therefore conflict prone. In order to remedy this situation, the political parties agreed to form a body known as the Interim Electoral Authority (IPA). Its mandate was to review the Lesotho electoral system with a view to making it more democratic, inclusive, and representative.[4] This conflict led to the birth of the new electoral model known as the MMP electoral system. This system tends to favour inclusiveness rather than exclusiveness. The more parties are represented in the legislature the better.

The Lesotho Mixed Member Proportional System

The IPA was composed of all parties that took part in the 1998 elections. Their main task among others was to come up with an inclusive electoral model. Consequently, on 25 August 1999, they unanimously decided to adopt the MMP electoral model for parliamentary elections. This model is a combination of the advantages of both the first-past-the-post and the proportional representation (PR) systems. In 2001, after extensive discussion of the ratio of FPTP to PR seats, the IPA decided that the number of seats in the national assembly should be 120, 80 of which should be constituency seats and 40 party seats. It was agreed that in order to ensure inclusivity, the electoral system should not have a threshold like those of Germany and New Zealand. The Lesotho Constitution (Fourth Amendment to the Constitution Act 2001) was amended to incorporate the MMP system with a ratio of 80/40 FPTP and PR (see seat allocation formula in appendix A). The MMP model was first used in 2002 elections. During this period, the challenges to the model were apparent and the political parties cooperated fully. It was the 2007 election that brought the system limitations to the forefront.

Before the 2007 election, the ruling party, the Lesotho Congress for Democracy (LCD), which had fragmented before the 2002 election, was still intact. It must also be noted that the LCD in 1997 splintered from the then Basutoland Congress Party (BCP). The LCD had a majority of 79 seats in parliament and thus implemented its legislative program without any problem. Furthermore, no opposition political party entered into an alliance, and even if they had, the LCD still had more leverage in terms of its majority in parliament.

Towards the beginning of 2006, the LCD hegemony began to wane. Firstly, the party expelled one of its MPs while a rival was Speaker of the parliament. Secondly, the party fragmented yet again as seventeen of its members crossed the aisle and formed a new party known as All Basotho Convention (ABC). This situation created a hung parliament. It would appear that these developments motivated the LCD, together with the ABC, to devise the strategy of galvanizing more seats in parliament by forming alliances with other smaller parties.

In this vein, the LCD called a snap election. The LCD meanwhile formed an alliance with the National Independent Party (NIP) and the ABC established its alliance with the Lesotho Workers Party (LWP). The rationale for these coalitions was to contest the 2007 election. These parties (LCD and ABC) decided that they were going to field their candidates in all 80 constituencies. They further placed some of their members under the PR lists of both NIP and LWP. The fact of the matter was that the LCD had realized that it was not going to win more than 60 constituencies and as a result, it would not be compensated under the current electoral system. By placing its members on the NIP PR list and encouraging its members to vote for the NIP with their second ballot, it was guaranteed to have more of its people elected into parliament on the NIP ticket. This analogy was similar with ABC and LWP alliance.

While the NIP had problems of its own, for example its leader managed to field 8 candidates in constituencies in defiance of his national executive which signed a pact with the LCD, the LCD strategy worked. Both parties wanted to gain more power and be able to implement their legislative agenda unhindered in parliament. However, it was the LCD that managed to do this after elections. Unlike in the 2002 election, these strategies by ABC and LCD ushered more challenges for the MMP.

The Challenges of the Mixed Member Proportional System

The electoral system must provide equal opportunity to all contestants and ensure that the playing field is level. In short, the electoral process "must be free of fraud and all manner of manipulation."[5] Conversely, no electoral system is ever perfect, and there is always room for improvement. The Lesotho system has many positive attributes, and yet there are many areas where reforms and changes have been urged. The major challenge of the Lesotho MMP model has been how the system was operationalised. This challenge is clearly illustrated below by the current legislation, which vests the power to manage the MMP in Lesotho in the Independent Electoral Commission (IEC) in terms of Section57 (1) of the 1993 Constitution, which reads as follows:

(1) Lesotho shall, in accordance with the provision of section 67 of this Constitution, be divided into constituencies and each constituency shall elect one member to the National Assembly in such manner as, subject to the provisions of this Constitution, may be prescribed or under any law.

The above Section must be read with Section 57 of the Constitution, Fourth Amendment to the Constitution Act (2001), which states:

(1) The members of the National Assembly shall be elected in terms of mixed member proportional electoral system that-

(a) Is prescribed by legislation;
(b) Is based on a national common voters roll; and
(c) Provides for the constitution of the National Assembly as follows-

(i) Eighty members to be elected in respect of each of the constituencies contemplated by section 67 (1); and
(ii) Forty members to be elected to forty seats in accordance with the principle of proportional representation applied in respect of the National Assembly as a whole.

Note that the prescribed legislation in (a) above refers to National Assembly Election (No.1) (Amendment) Act, 2001 Section 49 B, (1) that deals with the procedure for submitting lists of candidates for election under proportional representation which states:

(1) A political party intending to contest an election may nominate candidates for election by proportional representation in terms of section 57 ( c ) (ii) of the Constitution and submit a list of those candidates for election to the Director of Elections in the prescribed manner before the date stated in the election.
(2) The list shall

(a) include at least 40 candidates but not more than 120; and
(b) Arrange the candidates in order of preference from top to bottom.

(3) The list may include any candidate who is nominated for elections for constituency in terms of section 49.
(4) The list shall be accompanied by-

(a) An undertaking, signed by the duly authorized representative of the political party, binding the party, persons holding political office in the party and its representative and members to the Electoral Code of Conduct (hereinafter referred to as "code")
(b) A declaration, signed by the duly authorized representative of the party, that each candidate on the list is qualified to stand for election in terms of the Constitution or this Act;
(c) A statement signed by each candidate consenting to nomination in the prescribed manner; and
(d) A deposit in the amount of M8000.00.

Section 49 B deals with the procedure to be followed for nominating candidates for election (nomination court). Subsection 3 also means that a person from any party may appear under a list of any party irrespective of whether that person stood for a constituency or not. While it is true that the MMP is a good system, the common assumption that PR is in every case the better system should be treated with much caution. For example the allocation of seats in the 2007 election is a case in point. The final allocation of seats was in variance with the model as Table 1 below illustrates. (Table 1 here)

What is clear from the above table is that the political parties did not actually play by the MMP rules since they submitted one list instead of two as the PR principle articulates above. Section 49 B (1) actually misapplies the model, and this has become a major challenge that was not anticipated by the system. The above table also indicates that the current parliament of Lesotho does not reflect the principle of proportional but rather majoritarian representation as will be discussed below. For instance, some parties presented one list only instead of two. This is wrong because the establishment of MMP was intended to produce proportionality in parliament.

From Table 1 above, the Lesotho Congress for Democracy and the All Basotho Convention used a FPTP instead of a MMP system. These parties also paid M200.00, a fee paid for parties fielding candidates for the FPTP. Second, the Lesotho Workers party registered for proportional representation and similarly paid a fee of M8000.00 for fielding PR candidates. Third, the rest of the parties fielded candidates for MMP and therefore, paid M800.00 for PR and M200.00 for FPTP.

While the application of the model was wrong in principle, it was however not legally wrong because the legislative application of the model permitted this. In fact, "it is very difficult to argue that the actual allocation of seats in February 2007 was improper. On the contrary, the seats were allocated meticulously, according to the letter of the law."[6] This situation on its own presented a legislative challenge more especially when Section 49B still permits this erroneous practice.

This situation is similar to that of South Africa where the PR system was equally misapplied by the introduction of the floor crossing legislation that was contrary to the principle of the proportional electoral system the country was following.[7] For instance, floor crossing allowed members of parliament, members of provincial legislatures and local government councilors to change political party (or form a new party) and take their seats with them when they do so whenever they wish. Amendments to the constitution of South Africa and other legislation passed by the South African parliament made such floor crossing possible. The amendment removed clauses requiring members of the national assembly to give up their seats should they change parties.[8]

Legislative Challenge

Every democratic country has an electoral law that prescribes a particular electoral system. That law defines the process clearly in order to insulate the model from undue manipulation by political parties. In this manner "the Constitution and the electoral law represent the social contract between the state and its people and, more especially, the manner in which they regulate the conduct of elections."[9] Conversely, the Lesotho electoral law is silent on various issues relating to electoral conduct. The electoral law does not force political parties to submit their PR lists. For example, section 49B (1) goes further to permit parties to submit PR lists if they so wish, meaning that they are under no obligation to do so. Put differently, there is no law that forces parties to submit both lists (PR or FPTP); it is entirely up to parties to decide for themselves whether to submit either list or both. In principle, under MMP, failure to submit the PR list automatically disqualifies parties from benefits accruing from the PR compensatory list. This is another challenge that parties should take into consideration when amending the electoral law. These legal loopholes must be closed.

The MMP is also known as a compensatory model. This means that parties, which won more constituencies than others shall not be compensated under the PR list, just like parties that did not field candidates on the FPTP list. Conversely, the Lesotho Workers Party (LWP) was erroneously compensated even when the party did not field candidates under the FPTP. This must be corrected because this party should have done so. The MMP compensates only parties that failed dismally on the FPTP list, not those that did not. The law does not state in explicit terms that it is compulsory for a party to submit a list as well as field candidates in constituencies to conform to the nature of the current electoral model.

The failure to submit the PR lists by the All Basotho Convention and the Lesotho Congress for Democracy was yet another major challenge to the electoral system. They instead left submission of PR lists to their informal alliance partners- the Lesotho Workers Party and the National Independent Party respectively. The rationale here was to give preference to some candidates who were seen as likely to lose the in the election. They were candidates the party needed. Eventually, they did lose their constituencies but were able to enter parliament via the PR list of these parties, and others even made it to the cabinet (NIP members).

The current parliament therefore, reflects a higher degree of disproportionality between votes and seats than in the proportional representation system that it ought to be. The basic aim of the MMP is to represent both majorities and minorities in parliament and not overrepresenting or underrepresenting any parties, to translate votes into seats proportionately, as is the case in the Table 1.[10]

The Nature of Alliance and their Legal Status

The LCD and ABC appear to have taken advantage of the loopholes in the Lesotho electoral law to form informal alliances that gave them more parliamentary seats to the detriment of other smaller parties. Since the spirit of MMP in Lesotho has been defeated by major parties, it is clear that these parties did not take into account the specifics of the history, demographics, and political culture of Lesotho when they forged these informal coalitions before elections. They also did not take into consideration the rationale behind the 1999 adoption of the electoral system.

The above alliances were not formally registered with the appropriate government office and therefore, remained informal. They are pacts between parties with no force of law and no constitution, and the electoral law is silent on such informal pacts. The Independent Electoral Commission (IEC) cannot treat them as formal pacts but as individual parties when it comes to allocation of seats. Each party is treated independently on its share of seats. While the PR lists of alliances reflected names of candidates from other parties, this does not mean anything because the National Assembly Election Act 1992 is silent on the membership of a candidate who is nominated for the PR and the FPTP. The Act only says that a candidate can be nominated as a candidate or independent, but without mention of whether they should come from parties other than his or her own. The Act also does not indicate whether PR candidates submitted to IEC should belong to a certain party. In effect the Act does not go into the merits or demerits of including names of individuals in the PR list. The weakness here is that names of candidates can come from another party rather than a party actually submitting a list as has happened with these alliances.

The ABC/LWP and LCD/NIP alliances have used the drawing of the list as an intra-party negotiation strategy.[11] For instance, in their attempt to defeat the principle of inclusivity, which the original intention of the MMP system, the ABC-LWP specified that ABC should not submit its PR list but leave that in favour of the main alliance partner LWP. The LCD/NIP alliance "stipulated that the first five positions in the PR list should be reserved for NIP candidates in exchange for NIP's support in the constituencies," while the following ten places should go to LCD candidates then, followed by the NIP five and so on. The result has been that both alliances have not only distorted the model but also flouted its original inclusivity principle.[12]

In view of the fact that they (these parties, LCD and ABC) have benefited from both the constituencies and PR seats, they have essentially seized other parties' compensatory seats, more especially the smaller parties. The ABC and the LCD are equally accountable for distorting the model. According to Matlosa, the allocation of seats in Lesotho's 2007 parliament took the form of a mixed member parallel, which does not take into account the compensatory factor.[13] The key elements of inclusivity, reconciliation, and compensatory were therefore abandoned. While I agree with Matlosa on part of his observation, I also disagree with the parallel analogy, because the LCD and the ABC did not appear in the PR list and the LWP did not appear in the FPTP list, while the NIP appeared only in eight places. Therefore, this does not accurately reflect a mixed parallel system. In a mixed parallel system, the legislature consists of a block of seats that are elected by plurality or majority from single-member constituencies, and another block of seats that are elected in multi-member constituencies under a proportional system. The proportional seats are awarded independently of the outcomes in single-member districts.

There are two forms of the mixed system. When the results of the two types of election are linked, with seat allocations at the PR level being dependent on what happens in the plurality/majority (or other) constituency seats and compensating for any disproportionality that arises there, the system is a mixed member proportional (MMP) system. Where the two sets of elections are detached and distinct and are not dependent on each other for seat allocations, the system is a parallel system. While an MMP system generally results in proportional outcomes, a parallel system is likely to result in the proportionality that falls somewhere between that of a plurality/majority and that of a PR system. The parties non-compliance with the MMP system pointed towards the weakening of Lesotho's democratic consolidation.

The Intention behind the Introduction of MMP in Lesotho

While the introduction of the MMP model was well intentioned, it tends to produce unintended consequences during operation. The rational for adopting the MMP system was to guard against one dominant party system. Conversely, from the 2007 elections the LCD appeared still dominant. It seems that the MMP this time around offered Basotho what one might expect of the Westminster model that the country tried to run away from in 2002, a one dominant party system. The Lesotho MMP in the current parliament is therefore not different from the FPTP that concentrates power on the single party crown authority executive model (an unchecked prime minister, cabinet, and bureaucracy) as practiced in Britain and Canada.

The greatest oversight of the Lesotho Interim Authority has been to leave the national assembly with a set 120 seats that includes 40 proportional seats. This has made an inflexible parliament in terms of the quota of PR votes. They should have allowed an expanding parliament in terms of the quota. The challenge is that when the current quota was operationalised for the first time, it provided more seats (119) than 40. This created a crisis because it has to be reworked until it produces 40 seats. The law is also silent about what has to happen if the required numbers of seats are not met for the first time. It is this factor that has created the current political crisis in Lesotho with no expanding parliament. One thing is clear: MMP will not survive unless or until Lesotho political parties accept the modest power position that MMP awards small parties and most list MPs. The MMP therefore makes every vote and parliamentary seat potentially important.

The other challenge for the MMP has been the fact that it allows coalition politics in general, and they are usually prone to pernicious combinations of ideological incoherence, policy stalemate, and political instability. The interesting development in Lesotho is that the LCD has gone into coalition with the NIP, a party that boasts of a far different ideological position. The NIP is a breakaway of the archenemy of the LCD, the Basotho National Party that is conservative in character and pro-capitalist, while LCD has transformed itself from a socialist party to a social democratic party in orientation.

The LCD appointment of ministers from the NIP PR list has been one of the most interesting developments. While the prime minister has the prerogative to appoint ministers from any party, the ministers who have been appointed from NIP PR list are known to be LCD members who lost their constituencies under the LCD constituency list. This does not only make a mockery of Lesotho's democracy, but it also remains to be seen whether this marriage will last.

In relation to the ABC, the party itself appears to be a middle of the road party and tries to integrate all factions from different parties. It is a populist party that has no strong roots or any ideological orientation. Like the LCD above, the question is how long is the party going to be able to manage these different and challenging interests from different parties. This is one of the fundamental weaknesses of the model. Only time will tell. What is clear is that, though all these alliances are informal, the fact of the matter is that they have produced uneasy coalitions. For instance, the LCD has not appointed bonifide members of its partner NIP to the cabinet, while the ABC appears in no rush to convene party executive elections but rather has engaged in a drive to bring more political parties to the grand coalition; that is the Basotho National Party, the Lesotho Workers Party, the Alliance of Congress Parties, the Marematlou Freedom Party, and a faction of NIP which is led by Clovis Manyeli who appears to have broken ranks with his erstwhile executive committee that remained with the LCD. What is most telling about these parties is their diverse ideological orientation. This is because the MMP leads to more diverse opposition. This does not bode well for democratic consolidation. The likelihood of these stalemates and instability motivated by a lack of concrete issues is therefore high under this system. The result of these alliances is that they would alienate many voters by perpetuating tight party solidarity and exposing dealings between parties.

The MMP system also enhances transparency by publicizing inter-party relations, especially between coalition partners. That is, much of the intra-party bargaining and divisions of the past that a single party often could conceal have been replaced by inter-party relations for all to see. Canadian Liberal party strategist Warren Kinsella warns that the media thrives on backroom shenanigans and things that go wrong while they exploit all evidence of "misfortune, conflict, and an unkillable distrust of political success."[14] The media insures that no good reform goes unpunished. Thanks to MMP-facilitated transparency, they now can uncover more "sleaze" than ever. The formations of alliances will make it easy for the media to know what is going on within parties, and its ruthless weapon will be unleashed.[15]

It is also important for Lesotho political parties to be aware that MMP has alienated many by perpetuating tight party solidarity and exposing dealings between parties in many countries where this model is in operation. MMP makes smaller coalition parties' internal divisions more apparent by directing attention to their strange political bedfellows and by exposing many parliamentary processes to public scrutiny.[16]

A further consequence of MMP (in this case less noticed in the media) that was more apparent in Lesotho's sixth parliament than party leaders, personalities, and "sleaze", concerns inter-party parliamentary activities. To be sure, MMP has not weakened the parliament's partisanship or most parties' cohesiveness, nor has it changed the atmosphere of the place in a collegial consensus seeking direction. Across party lines MPs do not work better together, they are not more comfortable with each other, and they do not like each other better than before MMP.[17]

Inter-party coalitions resemble hostage situations. In theory, smaller partners make large parties hostage to some of their demands. If a large party cannot satisfy small parties, the latter can transfer their support to another large party or force an early election. Germany's small center pivot party model, in which the Free Democrats abandoned the Social Democrats for the Christian Democrats in 1982 and helped keep the new coalition in power for sixteen years, shows how coalitions can give small partners considerable leverage.

Conclusion

It appears that the Lesotho electoral system has been abused and manipulated. This system in 2007 elections allowed two types of cheats, those who formed informal alliances and those who were unduly compensated without submitting two lists (FPTP and PR lists). With no legal protection in existence, it was clear from the start that the MMP model was going to be gerrymandered by parties. The allocation of seats in the 2007 parliament was not based on the fundamental premise of MMP. It is evident that political parties manipulated the MMP model. The irony is that these parties were supposed to be the custodians of the model in the first place.

Political parties will always be challenged by the electoral system whenever changes within the society occur. The environmental challenges should be regarded positively not negatively because it is with them that the system is nurtured. Therefore, it is important for Lesotho's parliament and political parties to make the following amendments on the 1992 Electoral Act:

• That the law should make it mandatory for each party to submit both lists, that is the constituency and party lists.
• A candidate from each party be forbidden to appear in another party list while contesting a constituency on a different party ticket.
• The formula of the PR be explained clearly in the law which is being reworked twice to arrive at the quota that will produce 40 seats.

These recommendations though not exhaustive will go far in tightening the MMP system and protect it from manipulation by political parties.

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Notes