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ATTORNEY-GENERAL (AG) Tšokolo Makhethe King’s Counsel (KC) has weighed into the ongoing debate over the authority vested in Prime Minister Pakalitha Mosisili’s advice to King Letsie III to dissolve parliament, saying the premier’s advice is “mandatory and binding”.
Adv Makhethe KC also argues that Section 83 (4) (a) – which stipulates that the King can agree with or disregard advice by the premier to dissolve parliament – “cannot conceivably cohabit” with Section 83 (4) (b) which states that the monarch should dissolve parliament in the event of a no-confidence motion on the government.
The AG – who is the country’s principal legal officer and gives legal advice to the government – waded into the debate amid conflicting interpretations of constitutional provisions across the political divide following last Wednesday’s passing of a no-confidence vote against Dr Mosisili’s government by the opposition.
The opposition bloc, which consists of the All Basotho Convention, Alliance of Democrats (AD), Basotho National Party and Reformed Congress of Lesotho booted Dr Mosisili out of power after mustering the support of up to 74 MPs in the 120-member National Assembly, which just requires 61 seats to form government.
The government will remain in power until King Letsie III either dissolves parliament to call for elections — which would then be held after no more than three months — or hands over power to the opposition alliance.
Following the passing of the no-confidence motion, the constitution gave the premier three days to either resign, or advise King Letsie III to dissolve parliament and call for elections.
Dr Mosisili has since advised King Letsie III to dissolve parliament and call for elections, having declared he would not hand over power on a silver platter to the opposition.
With the constitution somewhat contradictory on the authority bestowed on the premier and King, Dr Mosisili and supporters of his seven-party governing coalition have argued that the premier’s advice was binding.
However, the opposition bloc has disputed that assertion, saying King Letsie III was within his powers to disregard the advice and hand over the premiership to AD leader Monyane Moleleki, whom they proposed in their no-confidence notice of motion.
The opposition leaders have since petitioned King Letsie III to consult the Council of State which they believe would advise King Letsie III against dissolving parliament.
The Council of State plays a role in advising the King on key constitutional functions including calling for elections. Currently it consists of Prime Minister Pakalitha Mosisili, Speaker of the National Assembly, Ntlhoi Motsamai, High Court Justices ’Maseshophe Hlajoane and Lisebo Chaka–Makhooane, Attorney-General Tšokolo Makhethe, Lesotho Defence Force Commander Khoantle Motšomotšo, Commissioner of Police Molahlehi Letsoepa, Principal Chief Mathealira Seeiso, ABC leader, Thomas Thabane and BNP leader Chief Thesele ’Maseribane.
In his legal opinion in anticipation of the passing of the no-confidence motion titled “Interpretation of Section 83 (4)(b) of the Constitution”, Adv Makhethe KC avers that the prime minister’s advice to the King was a “mandatory obligation”.
Section 83 (4)(b) states that “if the National Assembly passes a resolution of no confidence in the Government of Lesotho and the Prime Minister does not within three days thereafter either resign or advise a dissolution the King may, acting in accordance with the advice of the Council of State, dissolve Parliament . . .”
The key words, Adv Makhethe KC says, are the provision that “the King shall act in accordance with the advice of the Prime Minister”.
“‘Shall’ denotes a mandatory obligation. In any event, in the context of a system of constitutional democracy that embodies constitutional monarchy, it is settled constitutional law that, such advice is, for all intents and purposes, binding,” the AG avers.
“Lesotho has adopted the system. Where issues of advice by the Prime Minister (or, indeed by any person or authority) to the King arise, this indisputable constitutional truth has to be borne in mind.”
Adv Makhethe KC states that section 91(2), (3) and (4) of the constitution “puts it beyond any shadow of doubt that advice is binding”.
Section 91 (3) of the Constitution reads: “Where the King is required by this Constitution to do any act in accordance with the advice of any person or authority other than the Council of State, and the Prime Minister is satisfied that the King has not done that act, the Prime Minister may inform the King that it is the intention of the Prime Minister to do that act himself after the expiration of a period to be specified by the Prime Minister, and if at the expiration of that period the King has not done that act the Prime Minister may do that act himself and shall, at the earliest opportunity thereafter, report the matter to Parliament; and any act so done by the Prime Minister shall be deemed to have been done by the King and to be his act.”
Adv Makhethe KC continues: “In terms of the section, (Section 91 (3)) if advice is not accepted by the King, the very act advised can be done by the advising authority and shall be deemed to have been done by the King and to be his act.”
He cites the example of a civil case before the High Court of Lesotho titled Thabo Makenete vs. Major General Justin Metsing Lekhanya- CIV/APN/74/90 in which then Chief Justice Cullinan considered the nature and effect of the constitutional advice given to the King.
Justice Cullinan said: “Ultimately, however, the discretion is that of the Chairman, and the King is obliged in the last resort to accept the formal advice tendered.”
The AG avers that the words “last resort” signify the “undoubted right of the King to express his views, even strongly, ask critical questions, seek answers, advice, offer ideas, persuade, encourage etc”.
“. . . but in the final analysis, if nothing gives, to accept the advice tendered”.
Adv Makhethe KC further contends that the King’s disregard of the premier’s advice would create a constitutional crisis.
“Constitutionally, it is as well undesirable that the Monarch should block advice. This creates not only a constitutional crisis, but, inevitably, a political one, as unavoidably it means the Government is unable to function.
“It could plunge the Monarch into unnecessary political controversy. There is, anyway, the solemn oath of office and undertaking, taken in the presence of God Almighty, binding the Monarch’s conscience to always obey and observe the Constitution, preserve the character of the Monarchy as a symbol of unity of the nation and abstain from involving the monarchy in any way in politics or with any political party or group. That guarantees social cohesion and unity.”
He argues that Section 83 (4) (a) of the Constitution should not be read with Section 83 (4) (b).
Section 83 (4) (a) stipulates that the King can agree with or disregard advice by the premier to dissolve parliament and call for elections if it is not “in the interests of Lesotho”.
“. . . if the Prime Minister recommends a dissolution and the King considers that the Government of Lesotho can be carried on without a dissolution and that a dissolution would not be in the interests of Lesotho, he may, acting in accordance with the advice of the Council of State, refuse to dissolve Parliament;”
Adv Makhethe KC says the two sections “cannot conceivably cohabit”. He says if Section 83 (4) (a) was meant to be read with Section 83 (4) (b), it would have contained the words “subject to” which is found in statutes whenever there is such an intention.
“In fact, the Constitution is awash, in places, with use of the words ‘subject to’. Thus, if ever intended that proviso (b) was to be read ‘subject to’ proviso (a), it could have taken the lawmaker only two words, ‘subject to’, to express that intention,” he says.
“Thus, reading the words ‘subject to’ into proviso (b) is tantamount to veiled re-enactment of the proviso, and is usurpation of the powers of the lawmaker. That is impermissible. Only Parliament makes law.”
Adv Makhethe KC also posits that such an interpretation treats the concept of advice under the Constitution as synonymous with recommendation, “which is a fallacy”.
“They cannot co-exist. They are mutually exclusive. Advice binds; a recommendation, does not.”
He adds: “It is, thus, firmly my most considered opinion that once the National Assembly passes a resolution of no confidence in the sitting Government, the Prime Minister is obliged to do either of two things: resign or advise a dissolution.
“If he chooses to advise a dissolution, the advice is mandatory and binding; and there is no room for applicability of proviso (a). If he resigns, the matter is squarely in the hands of the King as to how to deal with the situation.
“If the Prime Minister does none of the above, he risks dismissal under section 87 (5) (a). I accordingly opine.”
Adv Makhethe KC yesterday confirmed authoring the legal opinion, adding that the King “reigns and does not govern as the country is a constitutional monarchy”.
He said a distinction should be made between the King’s “deliberate judgement” in the 1966 independence Constitution and the concept of binding advice that was introduced by the 1993 Vonstitution.
“The 1966 Constitution had a clause called deliberate judgement. The King could exercise deliberate judgement on the application of the constitutional provisions,” he said.
“The 1993 constitution is similar on the sections but the only difference is that it does not have the deliberate judgement clause especially on the areas of dissolution. It introduces a new clause that says advice is binding, although written in a roundabout manner.
“So, instead of deliberate judgement of the King, we now have binding advice and the bulk of the advice in the constitution is by the Prime Minister and other authorities,” added Adv Makhethe KC.