A Critique of Proceduralism in the Adjudication of Electoral Disputes in Lesotho

Abstract

One of the characteristic features of electoral democracy in Lesotho is disputed elections. Since 1993, when the country returned to constitutional democracy after a long haul of dictatorship and monarcho-military rule, every election has been subjected to one form of discontent or another. The aggrieved parties use various ways to vent their dissatisfactions, and more often than not, disputes end up in the courts of law. The courts are then called on to determine the validity or otherwise of the election results declared by the election management body. All seven elections since 1993 have been challenged in the courts of law. Despite this determination by political players in Lesotho to resolve electoral disputes through the courts of law, amongst other means, there is no court in Lesotho that has overturned an election result or ordered the reallocation of seats since 1993. The petitions are almost invariably dismissed on procedural grounds or on the basis of misapplication of the substantial effect doctrine. This approach to the adjudication of disputes in Lesotho has not only jeopardised substantive electoral justice in the country but has also arguably perpetuated the electoral violence that has been one of the characteristic features of electoral politics in Lesotho. The purpose of this article, therefore, is to critique this approach. Methodically, the paper uses the politico-legal approach to critique the pattern as it manifests itself through the many court decisions that have been handed down on election petitions since 1993.