FIVE High Court judges will tomorrow decide if the government will not be violating constitutional provisions by using state funds without seeking authorisation from parliament starting on 31 March 2017.
The court will also rule on King Letsie III’s decision to dissolve parliament on 6 March 2017 and proclaiming 3 June 2017 as the date for the snap general elections.
This comes after two separate court applications, one of them by prominent lawyer, Advocate Haae Phoofolo King’s Counsel (KC) who last month filed a constitutional application seeking to stay the decision by His Majesty to dissolve parliament and call for elections.
Basotho National Party (BNP) spokesperson Machesetsa Mofomobe and political activist Mohato Seleke had also filed a separate constitutional application seeking to interdict Finance Minister Tlohang Sekhamane from withdrawing funds from the main bank account of the government starting on 31 March 2017.
Following the toppling of the Prime Minister Pakalitha Mosisili-led government through a parliamentary no-confidence vote on 1 March 2017, the premier advised King Letsie III to dissolve parliament and call for elections.
The no-confidence vote had been spearheaded by a four-party opposition alliance consisting of the All Basotho Convention, Alliance of Democrats (AD), BNP and the Reformed Congress of Lesotho.
The bloc had proposed Alliance for Democrats (AD) leader, Monyane Moleleki as the replacement of Dr Mosisili upon the success of the no-confidence vote.
However, King Letsie III acceded to the advice from Dr Mosisili to dissolve parliament and call for the 3 June elections to the opposition’s chagrin.
In light of the two constitutional challenges, a panel of five High Court judges last Monday ordered that the applications be consolidated to form one case to shorten the proceedings.
The panel of judges is composed of Justices Teboho Moiloa, Semapo Peete, Lebohang Molete, Molefi Makara and Keketso Moahloli.
During the addresses, the applicants’ lawyer, Attorney Tumisang Mosotho argued government had no authority to utilise public funds because parliament had not approved the budget.
He said the government could not even use one third of the budget before parliament’s approval because the Finance minister did not table the financial estimates before parliament.
Mr Sekhamane was stopped in tabling budgetary estimates for the 2017/8 financial year by legislators from the opposition bloc who argued the seven-party government no longer had the parliamentary majority to remain in power.
Atty Mosotho said section 113 of the constitution gives the Finance minister powers to withdraw from the consolidated fund one third of the budget before the entire budget is approved by parliament.
However, he argued that the one third part of budget could only be used if the minister had been able to table the financial estimates for the 2017/2018 financial year.
“Section 113 of the constitution limits it to one third of the estimates laid out in parliament,” Atty Mosotho said.
“What section 113 says is that the estimates must be laid before parliament first and that was not done because the MPs (Members of Parliament) prevented any tabling of that Appropriation Bill; and they were entirely within their rights.
He added: “Having failed to lay estimates before parliament, he (Mr Sekhamane) cannot withdraw any funds from the consolidated funds.
“Any withdrawals without compliance with section 113 are unconstitutional and invalid.”
Attorney Mosotho said the minister could not withdraw money from the contingencies fund to finance the forthcoming elections because “it is meant for emergencies occurring in the current year”.
“Even if the minister had tabled the estimates before parliament that tabling would have fallen off because of the dissolution of parliament.
“Dissolution of parliament by its nature terminates every pending business in parliament.”
On the other hand, Advocate Koili Ndebele argued His Majesty ought to have considered if dissolving parliament was in the interest of the public or not.
However, Advocate Guido Penzhorn Senior Counsel (SC) defended government’s move towards making withdrawals from the consolidated fund starting yesterday.
He said the constitution gives the minister the authority to withdraw one third of the budget.
In the alternative, he said government could finance the forthcoming elections by withdrawing from the contingencies budget because the elections came as a matter of emergency.
The argument was mainly on the interpretation of section 113 (a) of the constitution read together with section 18 of the Public Financial Management and Accountability Act (2011).
Section 113 (a) of the Constitution states that “parliament may make provision under which, if it appears to the minister for the time being responsible for finance that the Appropriation Act for any financial year will not come into operation by the beginning of that financial year, he may authorise the withdrawal from the Consolidated Fund of moneys for the purpose of meeting expenditure necessary to carry on the government of Lesotho in respect of the period commencing with the beginning of that financial year and expiring four months thereafter or on the coming into operation of the Act, whichever is the earlier:
“(a) the moneys so authorised to be withdrawn in advance of the Appropriation Act for any financial year shall not exceed in total one-third of the sums included in the estimates of expenditure for the proceeding financial year that have been laid before the Assembly.”
Section 18 of the Public Financial Management and Accountability Act (2011) provides that: “if it appears to the minister that an Appropriation Act for any financial year will not come into operation from the beginning of financial year, the minister may approve withdrawal from the Consolidated Fund in accordance with section 113 of the Constitution”.
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