Lesotho: The future electoral system in Lesotho

Dr Jorgen Elkit, 2000

The recent electoral system impasse in Lesotho was caused by different interpretations of the October 1999 Award of the Arbitration Tribunal Appointed in Terms of Section 16 of the Interim Political Authority Act (1998) (the Award). The Award was unreservedly accepted both by the Government of Lesotho and by the Interim Political Authority (IPA) in December 1999.

The Award states that the proportional representation electoral model (or system) to be implemented in the forthcoming elections only shall be with an 80/50 mix ratio of constituency seats (FPTP) to Proportional Representation seats. This reflects the decision to use the existing 80 single-member constituencies (in order to avoid a time-consuming delimitation exercise) in the first elections to the National Assembly together with a proportional representation electoral system. It had also been decided to increase the overall number of seats in the National Assembly to 130. Further, the Award states that in later elections the mix ratio of the two kinds of seats shall be 50 per cent of each category of seats.

The Award per se is not crystal clear, because of two fundamentally different ways of combining single-member constituencies and proportional representational (ie, the Mixed Member Proportional system (MMP) and the Parallel System). The Award should, however, be read together with the Deed of Submission (of 8 October 1999) in which the parties agreed on the basis of the arbitration. The signatories agreed - among other issues - on the following:

"The PR mechanism will be used for determining final number of parliamentary seats for political parties. However parties will be entitled to retain FPTP seats that they have attained."

The most obvious interpretation of this agreement is that the basis for work of the arbitration tribunal should be the MMP electoral system (or model), even though this has been disputed. It would have added clarity to the work of the arbitration tribunal and its award if this issue had been clarified from the beginning.

The main features of the Mixed Member Proportional (MMP) system are the following:

If a party wins 10% of the ballots cast to determine the overall composition of the National Assembly, it is entitled to 10 per cent of all seats in the Assembly, and if another party wins 70 per cent of all such ballots, then its entitlement is, similarly, 70 per cent of all seats in the Assembly. So all seats in the National Assembly are to be distributed as proportionally as possible (according to the specific allocation system chosen, barring parties below electoral thresholds, if any) to the political parties on the basis of the total number of (national list) ballots they get.

Parties, which have been able to win seats in the single-member constituencies (on the basis of the ballots cast in the constituency races), are allowed to keep all such seats, no matter how they fare overall.

However, parties have the over-all number of seats to which they are entitled reduced by the total number of constituency seats they have won.

The difference between a party's overall entitlement and the number of constituency seats is the party's number of so-called compensatory seats, The compensatory seats are al- located to candidates, who the party has nominated on its national party list of candidates set up (in order of priority) for that purpose.

So the over-all formula for the MPP system is:

Over-all (proportional) allocation of seats - constituency seats = compensatory seats.

Recent talks and negotiations between various parties have made it clear that inadequate provision of information related to the working of the MMP system and the advantages and disadvantages of the system has contributed unintentionally to the differences of opinion leading to the recent ill-timed impasse.

A more complete understanding of the MMP system now prevails. This has also allowed a reduction of the number of seats in the National Assembly to 120 (one hundred and twenty), of which 80 are still to be allocated in the present single-member constituencies, while 40 are to be allocated as compensatory seats on the basis of the above formula, i.e. as the balance between the number of seats parties are entitled to on the basis of the total (national) ballots and the number of seats won on the basis of the (constituency) ballots. One reason for this reduction is that 130 seats are is not necessary to obtain a reasonable degree of proportionality. The ratio 80:40 (or 2: 1) allows for relatively more constituency seats than most other MMP systems, but the share of compensatory seats (33.3 per cent) should still - according to conventional wisdom - be sufficient to allow for reparation of all serious cases of under-representation. It has also been claimed that an increase in the membership of the National Assembly to 130 is more than Lesotho can afford at this point in time, which means that a slightly reduced increase is probably to be preferred.

This understanding includes the following specific points.

• Each voter will be offered two ballots, one for the over-all composition of the National Assembly and one for the election of the constituency MP. The IEC is to decide if the ballots should be printed on two separate pieces of paper or only on one (in which case one is printed on the left-hand side, one on the right-hand side).
• If a party wins more constituency seats than it is entitled to on the bases of its share of votes for the national party lists, then it is allowed to retain all such seats, and the number of seats available for compensation to under-represented parties (the 40 seats) is reduced correspondingly. Thus, the number of seats in the National Assembly is not to be increased temporarily to address such allocation problems.
• Dual candidates are allowed, i.e. a party is free to nominate on its national party list candidates who have already been nominated to stand as candidates in single-member constituencies. If such a candidate is elected in both capacities, he/she is considered elected in the constituency and his/her compensatory seat goes to the next eligible candidate on the list.
• Vacancies in constituencies are filled through by-elections; vacancies among the 40 MPs elected from the lists are filled by the next eligible candidate on the list in question.

The PR allocation formula is what is technically referred to as "the Hare quota with largest remainders".

The foreseen reduction in the stipulated overall number of seats in the National Assembly (from 130 to 120) can be implemented easily. All what needs to be done is that the numbers "130" and "50" in the Constitution of Lesotho (Amendment) Bill and in the National Assembly Electoral Order (Amendment) Bill (including the very important Schedule 5, which is an integral part of the Bill) prepared by the IPA is replaced by the numbers " 120" and "40", respectively.

It is suggested, however, that all relevant amendment bills as a matter of urgency are checked by experienced constitutional law and electoral system experts before being finally submitted to Parliament as the various recent changes might have introduced formulations with unintended consequences.