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FREE, FAIR ELECTIONS AND GOOD GOVERNANCE: A TWO- WHEELED CARRIER

FOR SERVICE DELIVERY

INTRODUCTION

[1]In discussing the connection between free an fair elections and good
governance, the entry point is the dicta of the majority in the Canadian case of
Suave v Canada(2007) 16 BHRC 350 at 359 para 31 and 360 Para 34 that:

31. “In a democracy such as ours, the power of law makers flows
from the voting citizens, and lawmakers act as the citizens’ proxies.
This delegation from voters to legislators gives the law its legitimacy
or force. Correlatively, the obligation to obey the law flows from the
fact that the law is made by and on behalf of the citizens. In sum, the
obligation the legitimacy of the law and the obligation to obey the
law flow directly from the right of every citizen to vote. As a practical
matter, we require all within our country’s boundaries to obey its
laws, whether or not they vote. But this does not negate the vital
symbolic, theoretical and practical connection between having a
voice in making the laws and being obliged to obey it. This
connection, inherited from social contract theory and enshrined in
the charter, stands at the heart of our system of constitutional
democracy.
32………………

33 ……………..
34. The right of all citizens to vote, regardless of virtue or mental
ability or other distinguishing features underpins the legitimacy of
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Canadian democracy and Parliament’s claim to power. A government

that restricts the franchise to a select portion of citizens is a
government that weakens its ability to function as the legitimate
representative of the excluded citizens, jeopardizes its claim to
representative democracy and erodes the basis of its right to convict
and punish law-brakers”. (Emphasis added)
[2] This recognition of the vote as an instrument to confer power and
legitimize rulers to act in the name and on behalf of the governed has as its
fore-runner the dicta of the United States Supreme Court in the case of
Reynolds v Sims 377 US 533(1964) in which the philosophy of “one person-
one vote, one vote – one value”as a bed-rock for representation in Parliament
was propounded as follows:

“Legislators represent people, not trees or acres. Legislators are elected

by voters, not forms or cities or economic interests. As long as ours is a
representative form of government, and our legislatures are those
instruments of government elected directly by and directly
representative of the people, the right to elect legislators in a free and
unimpaired fashion is a bedrock of our political system”.(Emphasis
added)

[3] What we are not told in these dicta are the operationalising values and
principles for a free, fair vote and good governance. If good governance is the
goal, then elections must be processes towards attainment of this goal. In
other words elections should enable society not to get the leaders who
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enslave them but leaders whose character is prescribed by Jesus in the Book
of Mathew 20:20-28 as follows:

“Among the heathen, kings are tyrants and each minor official lords it
over those beneath him. But among you it is quite different. Anyone
wanting to be a leader among you must be your servant. And if you
want to be right at the top, you must serve like a slave. Your attitude
must be like My own, for I, the Messiah, did not come to be served, but
to serve, and to give My life as a ransom for many”.

[4] Mathew 20:20-28 lays down the basic law for developing values and principles
for good governance and free and fair elections. This scriptural word articulates
the dialectical relationship between the electorate and the persons they deploy to
serve in public institutions. People elect into office servants and not tyrants who
lord it over the electorate. The message is that democratic elections are a sacred
selection of true and humble servants whose daily business is to better and not
betray the lives of the people.

[5] The challenges of abiding by this basic law is that most practitioners of politics
and the political organizations consist of people who are not by words and deeds
followers of the Word of God as propounded in the Mathew 20:20-28. They walk
by sight and not by faith. Hence in elections they see opportunities for access to
public status, employment and accumulation of wealth and not opportunity to
provide selfless service, suffering and sacrifice. This is the context within which
electoral competition rules and governance principles are often bended to serve
personal and family interests.
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ELECTORAL LAW? PRINCIPLES AND VALUES

[6] Article 25 of the International Covenant on Civil and Political Rights (ICCPR)
and Article 13 of the African Charter on Human and Peoples’ Rights are the basic
normative frameworks that articulate the minimum standard rules for elections.
The ICCPR guarantees:

“Every citizen has the right and opportunity:

a) To take part in the conduct of public affairs, directly or through

freely chosen representatives;

b) To vote and to be elected at genuine periodic elections which

shall be by universal and equal suffrage and shall be held by secret
ballot, guarateeing the free expression of the will of the electors;

c) To have access, on general terms of quality, to public service in his

country” [Emphasis added]

Article 13 of the African Charter provides that:

1. “Every citizen shall have the right to participate freely in the

government of his country, either directly or through freely
chosen representatives in accordance with the provisions of the
law.
2. Every citizen shall have the right of equal access to the public
service of the country.
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3. Every individual shall have the right of access to public property

and services in strict equality of all persons before the law”.

The implications of the textual meaning of these provisions have been unpacked
by the United Nations Human Rights Committee in its General Comment 25 as
being:

1. An independent electoral authority should be established to

supervise the electoral process and to ensure that it is conducted
fairly, impartially and in accordance with established laws which
are compatible with the Covenant.
2. Laws must guarantee the effective exercise of voting rights.
Persons entitled to vote must be free to vote for any candidate
and be free to support or to oppose government, without undue
influence of coercion of any kind which may distort or inhibit the
free expression of the electors’ will. Voters should be able to form
opinions independently, free of violence or threat of violence,
compulsion, inducement or manipulative interference of any kind.
Importantly assistance provided to the disabled, blind or illiterate
should be independent

3. A State Party must function as a democracy in which the

modalities of distribution of power and citizens’ rights of political
participation are established by the constitution and other
laws.Participation in the conduct of public affairs can be direct
and indirect through elected representatives. Participation
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through elected representatives must be exercised through voting

processes which must be established by laws.
4. Such laws must provide for the right to vote and to be elected at
genuine periodic elections.The genuine periodic elections must be
by universal and equal suffrage and be held by secret ballot so as
to guarantee the free expression of the will of the electorate.
5. Adequate opportunities to exercise the right to vote must be
provided by putting in place effective measures. Such measures
include national voter education and registration campaigns;
removal of obstacles to voter registration such as unreasonable
residence requirements for the homeless; strict enforcement of
laws than penalize abusive interference with registration, voting
as well as intimidation and coercion of voters.
6. Positive measures should be taken to ensure voters’ freedom of
expression, assembly and association. Such measures include
tackling specific difficulties such as illiteracy, language barriers,
poverty and impediments to freedom of movement which
prevent persons entitled to vote from exercising their rights
effectively. IEC materials should be available in minority languages
and specific methods, such as photographs and symbols should be
adopted to ensure that illiterate voters have adequate
information on which to base their choice.
7. The drawing of electoral boundaries and the method of allocating
votes should not permit significant differences in numbers of
votes in different constituencies or distort the distribution of
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voters or discrimination against any group or exclude or restrict

unreasonably the right of citizens to choose their representatives
freely.
8. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable
criteria. Persons who are otherwise eligible to stand for election
should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by
reason of political affiliation.
9. Conditions relating to nomination dates, fees or deposits should
be reasonable and not discriminatory. If a candidate is required to
have a minimum number of supporters for nomination this
requirement should be reasonable and not act as a barrier to
candidacy.
10.If there are reasonable grounds for regarding certain elective
offices as incompatible with tenure of specific positions(e.g. the
judiciary, high ranking military office, public service) measures to
avoid any conflicts of interest should not unduly limit the rights to
vote and stand for election. The grounds for the removal of the
elected office holders should be established by laws based on
objective and reasonable criteria and incorporating procedures.
11.Reasonable limitations on campaign expenditure may be justified
where this is necessary to ensure that the free choice of voters is
not undermined or the democratic process distort by the
disproportionate expenditure on behalf of any candidate or party.
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12.Effective temporary measures be developed to remove de jure

and de facto barriers against women’s participation in politics and
election to public office. Such measures include recruiting,
financially assisting and training women candidates; amending
electoral procedures, setting numerical goals and quotas and
targeting women for appointment to public positions.
13.Measures must be put in place to guarantee the secrecy of the
vote. This implies that voters should be protected from any form
of coercion or compulsion to disclose how they intend to vote or
how they voted, and from any unlawful or arbitrary interference
with the voting process. Waiver of these rights is incompatible
with Article 25 of the Covenant (Emphasis added)
14.The security of ballot boxes must be guaranteed and votes should
be counted in the presence of the candidates or their agents.
There should be independent scrutiny of the voting and counting
process and access to judicial review or other equivalent process
so that electors have confidence in the security of the ballot and
the counting of the voters. (Emphasis added)
15.There should be free communication of information and ideas
about public and political issues between voters, candidates and
elected representatives. This implies a free press and other media
free of government influence which is able to comment on public
issues that censorship or restraint and to inform public opinion. It
also requires freedom to engage in political activity individually or
through political parties and other organizations, freedom to
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debate public affairs, to hold peaceful demonstrations and

meetings, to criticize and oppose, to publish political material, to
campaign for election and to advertise political ideas.
16.The freedom of association including the right to form and join
organization and association concerned with political and public
affairs is crucial. States should engage that in their internal
management, political parties respect the applicable provisions
of Article 25 in order to enable citizens to exercise their rights
thereunder. (Emphasis added)
17.Avenues for citizens direct participation in the conduct of public
affairs be provided beyond those compulsorily prescribed in the
Covenant. Such avenues include participation in popular
assemblies which have powers to make decisions about local
issues or about the affairs of particular community and in bodies
established to represent citizens in consultation with government
including empowerment of citizens to exert influence through
public debate and dialogue with their representation or through
their capacity to organize themselves.
18.The result of genuine elections which have seen exposed to
international observers should be respected by a candidate or
party.

These are the criteria for free and fair elections which any society calling itself
democratic must codify in its policies and laws and faithfully practice in public
administration.
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[7] Having said this, it needs pointing out that the HRC’s General Comment has
been criticized for failing to mention one of the biggest threats to free and fair
elections- corruption and bribery. (See Joseph et all 2000:501).Another criticism is
that while recognizing the influence of the media in determining the outcome of
elections and rightly stressing that the media be free from government influence,
the General Comment does not target the pernicious influence of private sector
media monopolies in moulding public opinion (Joseph op.cit.)

[8] The elections having come, declared free and fair and gone, the General
Comment calls upon all to accept them as a genuine expressing of the will of the
people- whereafter the nation must knuckle down to the business of the good
governance. The imperative of good governance is that the electoral promises
must be turned into the fulfillment of the bread and butter needs of the voters
and talk to the protection and promotion of human rights guarantees in the
constitution. Otherwise the electoral promises would constitute a national
experiment in the determination of the most attractive liar among politicians!
This proposition speaks to the national efforts to have kept the flame of
democracy burning in the hearts and minds of the nation lest elections become a
blank cheque for elected representatives.

This danger keeps lurking in contemporary democracies, especially in developing

nations, as A.C. Greyling (2009:119) articulates:

“There is some force in the dismaying thought that the world’s so far-
relatively brief experiment in democracy is proving hard for ordinary
folk to admire, or even bear. This is not least because politicians in
democracies have learned how to nullify or control the power of the
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voting public by various kinds of manipulation, and also because

people feel a certain weariness generated by the gap between
politicians’ promises and the hard realities – which are that things
take a lot of turning around, inertia is deep in the system, vested
interests are organized, well funded and influential in ways that
disempower voters who are insufficiently organized and have their
say only periodically. The lobbyists are in the corridors of power
every day, cheque books in hand- and always therefore better poised
to win”.

Ronald Dworking (2006: 131) observes that there are two paradigms to
democracy – the majoritarian paradigm and the partnership paradigm. The
majoritarian paradigm is that:

“democracy is a government by majority will, that is, in accordance

with the will of the greatest number of people, expressed in elections
with universal or near universal suffrage. There is no guarantee that
a majority will decide fairly; its decisions may be unfair to minorities
whose interests the majority systematically ignores. If so, then the
democracy is unjust but no less democratic for that reason”.

In the partnership paradigm, however;

“democracy means that the people govern themselves each as a full

partner in a collective political enterprise so that a majority’s
decisions are democratic only when certain further conditions are
met that protect the status and interests of each citizen as a full
partner in that enterprise. On the partnership view, a community
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that steadily ignores the interest of some minority or other group is

just for that reason not democratic even though it elects officials by
impeccably majoritarian means”.

[9] It is by marrying these two paradigms of democracy that we talk about good
governance. The defining character of good governance is that the strength of the
majority must not be allowed to abuse and destroy the minority. To guard against
this happening, the following principles and values of public administration have
been evolved and even been constitutionalised. (SA Constitution: 1993: 185;
Sakoane : 2008-2009:135)

1. A high standard of professional ethics must be promoted and

maintained;
2. Efficient, economic and effective use of resources.
3. Public administration must be development-oriented.
4. Services must be provided impartially, fairly, equitably and without
bias.
5. People’s needs must be responded to and the public must be
encouraged to participate in policy – making.
6. Public administration must be accountable.
7. Transparency must be fostered by providing the public with timely,
accessible and accurate information.
8. Good human- resource management and career- development
practices, to maximize human potential, must be cultivated.
9. Public administration must be broadly representative of the people,
with employment and personnel management practices based on
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ability, objectivity, fairness, and the need to redress the imbalances of

the past to achieve broad representation.
10.The Executive must be horizontally accountable to a strong
Parliament, and an independent Judiciary.
11.There be independent auditing, anti- corruption, prosecution and
human rights agencies.
12.The government must be vertically accountable to the electorate
through strong civil society and active free media whose watchdog
role is provided for in an appropriate legislation allowing free access
to information.
13.The existence of elaborate codes of ethics establishing minimum
standards of integrity and accountability among public representatives
and public officials.
14. Observance of the rule of law and respect for human rights.

NATIONAL PERFORMANCE

[10] For the question how Lesotho performs in this scheme of things, the answers
are found in the APRM Country Review Report (June 2010). Operating from the
premiss that Lesotho has ratified the ICCPR and the African Charter and
constitutionalised their provisions in Article 20 of the Constitution of Lesotho, the
Report state the following as some of the challenges for free and fair elections
and good governance:

1. There is a need to improve the independence of the Independent Electoral

Commission (IEC) and the Mixed Member Proportional (MMP) electoral
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system by closing the dual ballot that allows manipulation through the
formation of informal political party alliances that undermine the MMP
model and beefing up the IEC through development of legislation that
gives the IEC more financial and administrative independence.
2. There is a lingering threat of internal political conflict that might be fuelled
by intraparty and interparty conflict. This conflict results from intense
rivalry among the political elite in the context of poor resource
endowment and the lack of a productive private sector. Thus, the electoral
contest becomes a bitter zero-sum struggle, since electoral defeat could
mean a loss of livelihood.
3. There is a dominant Executive which is insufficiently countervailed by a
weak Parliament and is not sufficiently held accountable by oversight
institutions that are subordinated to it. Parliamentary oversight over the
Executive would be greatly enhanced by, for example, making the
Ombudsman, Auditor – General, the Directorate on Corruption and
Economic Offences (DCEO) and the Police Complaints Authority to report
directly the Parliament ( as the representative of the people) rather than
through the Executive.
4. The public service lacks capacity, is unable to deliver public services
efficiently and is largely unaccountable. The impact of the oversight
institutions on the performance of the public sector has been minimal. For
example, public sector accounts are either not submitted on time for
auditing or are deficiently prepared. Several ministries and departments
are not complying with government financial rules, regulations and
procedures, thus creating a potential breeding ground for fraud and loss of
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public funds. There is ample evidence that public finance management and
accountability have been consistently deteriorating over the years.
5. The anticorruption legal frameworks in place to combat the problem of
corruption and ensure accountability in the public sphere have not
achieved much. This is because, among others, the oversight of the office
of the Accountant General is not adequate and does not ensure that
ministries and districts submit reconciliations and supporting information
on a monthly basis. This is perpetuated by the fact that failure to submit
reconciled accounts carries no sanction or risks regarding continued
funding. Additionally, the DCEO is regarded as ineffective as it lacks
capacity to investigate economic offences, which require specialized skills
like money laundering and other sophisticated economic crimes.
6. Decentralization and popular participation through the legal and
administrative frameworks of the Ministry of Local Government faces
three main problems that lead to poor service delivery and law
stakeholder participation. The first is that the national central government
has not made adequate resources available to local government
structures. Although the local councils can generate local revenues from
rates and other activities, this is often not viable. The second is that there
is confusion and tension over the definition of powers and functions of the
roles of the chiefs, and of the local councils. The third is that despite
affirmative action for women in the local councils’ electoral processes,
their level of participation in the deliberations in the councils is still low,
thus leaving men as the principal decision- makers. This is attributable to
lack of human- capacity development and inadequate resources.
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7. With reference to specific concerns regarding the implementation,

protection and human rights, there is a need for the government to
address shortcomings as far as general education about human rights and
the special rights to information and association are concerned. Both state
and non-state stakeholders and ordinary citizens require more knowledge
and information and greater awareness on human rights issues, while
elected representatives and civil servants require skills training in the
efficient provision, maintenance and protection of a comprehensive
human rights culture. In this respect, the long awaited establishment of a
Human Rights Commission cannot be over emphasized.
8. Citizens, and especially the media, have rather limited access to
information. Journalists’ right to protect their sources of information is
being curtailed. There is need for legislation to enable access to
information, protection of journalists’ sources and development of a code
of conduct to self-regulate and sanction irresponsible media coverage.
9. The Judiciary’s capacity to dispense justice is under-mined by human-
capacity and budgetary constraints in the face of increased litigation. Its
independence and effectiveness is compromised by the lack of
transparency in appointments and promotions to the bench; inadequate
publication of law reports and legislation; delays in the disposal of cases
and non-existence of written, enforceable codes of conduct for Judicial
Officers and Legal Practitioners.
10.Widespread poverty and high income inequality in the country suggest
that a large segment of society cannot achieve individual or collective self-
reliance. About 56.6 percent of the population is classified of poor. Poverty
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is widespread in rural as well as urban centers and is compounded by high

unemployment rates which been amplified by the extensive
retrenchments of Basotho workers in South Africa.

There is inefficient service delivery caused by a number factors such as lack of

technology, poor management, a poor working environment and low staff
morale. The key concerns of public servants include poor remuneration which
is not competitive in many cases, does not reflect the market and is not tied
to performance. These factors have contributed to high staff turnover in
some key sectors, leaving the government ill-equipped.

11.Basotho feel remote and disconnected from government. It takes too long
to get services like passports, payment of teachers, salaries,and pensions
for civil servants, failure to process immigration papers leading to loss of
business opportunities and cross- border employment and there are
delays in processing of cases in the judicial system.
12.HIV and AIDS is drastically undermining efforts to promote good
governance in all sectors as it reduces the supply of skilled workers to the
public and private sectors. Sickness and death of employees reduce
productivity and limited national resources are being diverted to meet the
costs of treatment and prevention.
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CONCLUSION

[11] To conclude is to restate the proposition made at the beginning, that is, free
and fair elections are necessary pre-condition and requirement for good
governance. But that pre- condition does not guarantee that the product will be
as good as the process. It is this dialectical relationship between the process of
fair, free fair elections and its product of good governance which law-reform
agencies and institutional architects have to nurture, guard and strengthen by
taking law-reform and institutional reforms initiatives that will deepen the roots
of democracy and close service delivery gaps.
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REFERENCES

1. African Peer Review Mechanism Kingdom of Lesotho Country Review

Report No. 12 June 2010
2. Constitution of Lesotho 1993
3. Constitution of South African 1994
4. Dworkin, Ronald (2006) Is Democracy Possible Here? : Principles For A
New Political Debate( Princeton University Press)
5. Greyling, A.C. ( 2009) Liberty In The Age Of Terror (Bloomsburg: London)
6. Holy Bible
7. Joseph S, Schultz J. and Caston M.(2000) The International Covenant On
Civil And Political Rights : Cases, Materials, And Commentary(Oxford
University Press: London)
8. United Nations Human Rights Committee (1996) General Comment 25
9. Sakoane ,S.P. (2008-2009) “ Dynamic of Empowering Citizens To Shape The
Destiny Of Good governance” Lesotho Law Journal Vol. 18 No.1