VZCZCXRO0403
RR RUEHMR
DE RUEHMR #0167 0931309
ZNR UUUUU ZZH
R 031309Z APR 06
FM AMEMBASSY MASERU
TO RUEHC/SECSTATE WASHDC 1976
INFO RUEHMR/AMEMBASSY MASERU 2243

UNCLAS MASERU 000167 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PREL KDEM LT
SUBJECT: THE ARGUMENTS ON BOTH SIDES OF THE IEC DISPUTE 
 
REF: MASERU 0164 
 
¶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