‘Mantšali Phakoana
The recent Constitutional Court ruling giving the prime minister power to advise the King to call for snap elections when they face a motion of no confidence in parliament is costly and a major setback to the country’s economic development, analysts have said.
The ruling last Friday nullifying the Ninth Amendment to the Constitution gives incumbent prime minister Sam Matekane, who has been fighting to fend off a motion of no confidence by the opposition over the past several months, a major relief.
The case was before the Constitutional Court Judges; Justices Molefi Makara, Tšeliso Monaphathi and Keketso Moahloli.
Constitutional lawyers, political leaders and analysts this week said the judgment forces the country to hold ‘unnecessary’ elections running into unbudgeted millions of maloti.
The opposition intends to appeal the case. They will be seeking the Appeal Court to overturn the judgment. The then minister of law and justice, also leader of Popular Front for Democracy (PFD), Lekhetho Rakuoane was the mastermind behind the Amendment.
Contacted for comment on Tuesday this week, Rakuoane said the Constitutional Court has overstepped its mandate by repealing Amendment to the Constitution, as it was the mandate of the parliament to do.
He noted that the judiciary has to denounce itself on the mandate of repealing and adding sections of a law.
“We are still expecting a written judgment to see the arguments and if the courts have identified which Sections are ‘untouchable’ and cannot be amended by parliament. The same interpretation should apply on the reforms,” he said, adding that they would ask the Appeal Court to give direction.
“The Ninth Amendment was enacted by parliament to prevent prime ministers from approaching the King to dissolve parliament and calling for snap elections when faced with a vote of no confidence motion, thus saving the country for spending money on elections before parliament completes its five-year term.
“It forced them (prime ministers) to step down and allow members of parliament with a majority to select the prime minister’s replacement without having to go for snap elections,” Rakuoane explained.
He argued that snap elections were a setback to the development of the country as they could consume over M400 million in less than five years.
He also contended that for elections to take place, a prime minister does not use money from his own pockets but from government, and allocated by parliament.
Rakuoane recalled an incident before the Amendment could be effected, where former prime minister Pakalitha Mosisili had to use funds from the National Manpower Development Secretariat for snap elections in 2017 because there was no budget for such. Mosisili was also not ready to resign in parliament.
Their main prayer as opposition, he said, would be to ask the Appeal Court to declare where Matekane will get money for elections should he lose a no confidence motion and resort to snap elections.
Rakuoane said Lesotho had been turned into a laughing stock due to its parliament constantly failing to last its five-year term, due to no-confidence votes.
Besides, this also hindered the country’s progress.
“We will remain stuck when it comes to issues like enacting laws because no parliamentarians are expected to be able to fulfil such mandate in less than two years,” he said. Matekane has only been in power for less than this.
He further indicated that the opposition would put on hold the push for a motion of no confidence for now and prioritise the appeal case first.
Constitutional lawyer, Karabo Mohau also disagreed with the judgement.
Mohau noted that the Ninth Amendment did not violate the basic structure of the Constitution.
If anything, he said the Amendment sought to fortify that structure in two ways: first by saving the country from economic ruin brought about by frequent snap elections; and second, by restoring the people’s waning confidence in the electoral process.
“After all, democracy is much more than cyclic elections. It is about bettering the lives of the general populace and not just those of a few people who make it into political office after an election.
“The recent decline in voter turnout has proved that Basotho are tired of snap elections. This has also tarnished the image of our democratic dispensation as a country,” he noted.
Mohau further stated that while it is the mandate of parliament to make laws, it is also the mandate of the judiciary to interpret those laws and invalidate those made in violation of the Constitution.
However, he noted that no one is infallible; parliament can make invalid laws just as the judiciary can make mistakes in its judgments.
Where the judiciary errs, the appeal process is available to correct judgments that are not legally sound, he noted.
Hence his belief that the Court of Appeal would reverse the invalidation of the Ninth Amendment.
National University of Lesotho (NUL) political science associate professor Motlamelle Kapa said since the court has declared the Amendment as non-existing, the country was back to square one where a prime minister will exercise their powers to save themselves and not for the sake of the country.
Prof Kapa noted that if it remains that like, the court ruling has empowered prime ministers to lead without having to depend on parliamentarians’ ‘mercy’.
On a positive side, he said, parliamentarians will no longer threaten prime ministers with a vote of no confidence every time there is misunderstanding because of fear of losing seats should a prime minister resorts to snap elections.
However, Prof Kapa pointed out that the financial implication of this is that the country would have to incur expenses of going for snap elections should a prime minister feel like.
The Ninth Amendment had been enacted by parliament in May 2020 and was first exercised on former prime minister and leader of All Basotho Convention (ABC), Thomas Thabane, when he lost majority support in the National Assembly.
The amendment forced Thabane to resign and rrelinquish power to his party’s legislator, Moeketsi Majoro, who was voted by the majority of MPs in the tenth parliament.
Before the enactment of the Ninth Amendment to the Constitution, Section 83(4) allowed the prime minister to advise His Majesty to call for general elections when he (prime minister) loses a no confidence motion.
The amendment scrapped sections 83(4) and 87.5 (a) (b) of the Constitution to empower parliament to, through a majority vote, remove and replace a prime minister without having to go for snap elections.
“If the National Assembly passes a resolution of no confidence in the government of Lesotho, the prime minister shall resign if the resolution of no confidence proposes a name of a member of National Assembly for the King to appoint in the place of the Prime Minister.
“The prime minister shall not advise dissolution under this Section, unless the dissolution is supported by a resolution of two thirds majority of the members of National Assembly,” it reads.
The Constitutional Court has now invalidated this Amendment, citing it violates the basics of the Constitution of Lesotho, especially Section 1, which states that Lesotho shall be a sovereign democratic Kingdom.
The ruling came as a result of an application filed by Revolution for Prosperity (RFP) legislator for Thaba-Moea constituency, Lejone Puseletso, on October 16, 2023, the same day the motion on a vote of no confidence against Matekane was supposed to be debated in parliament.
In his court application, Puseletso had argued that the Ninth Amendment to the Constitution was in violation of Section 86 of the Constitution, which reads: “The executive authority of Lesotho is vested in the King, and subject to the provisions of this Constitution, shall be exercised by him through officers or authorities of the government.”
He further argued that the amendment deprived the King of his right to dissolve parliament, adding that it also violated the structure of democracy prescribed in section 1 of the Constitution. The Court through its two Judges agreed with him.
The confidence motion had been filed by the Basotho National Party (BNP) leader, Machesetsa Mofomobe, seconded by the Democratic Congress (DC) Makhaleng legislator, Mootsi Lehata on October 13, 2023. The duo had suggested DC leader, Mathibeli Mokhothu as the new premier.
Puseletso had also asked the Constitutional Court to block parliament from passing a no confidence motion against the prime minister until the national reforms process has been fully completed.
No ruling was made on the matter.
