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ConCourt nullifies Thabane’s prorogation of parliament

  • ruling paves way for no confidence vote against Thabane as embattled PM mobilises army to save him.

Mohalenyane Phakela

THE Constitutional Court has nullified Prime Minister Thomas Thabane’s decision to prorogue parliament, a ruling that paves way for his ouster from office.

Dr Thabane prorogued parliament from 20 March to 19 June 2020, arguing the country had to ban large gatherings to prevent the spread of the deadly coronavirus (Covid-19) which has infected millions and killed more than 200 000 people globally.

However, the move was immediately challenged by the national executive committee (NEC) of the premier’s own faction ridden All Basotho Convention (ABC), his coalition government ally the Basotho National Party (BNP) and eight other litigants, who also sought an extra order for Dr Thabane’s removal from office.    The 10 applicants argued Dr Thabane had committed treason in proroguing parliament without King Letsie III’s specific approval. They, among other things, accused the premier of proroguing parliament to, among other things, save his own skin by frustrating current parliamentary processes to remove him from office.

A three-member Constitutional Court bench on Friday upheld the application that the premier had illegally prorogued parliament and ordered its re-opening.  However, the same court dismissed the application to have Dr Thabane removed from office saying that was beyond its remit.  A court cannot order the removal of a democratically elected Prime Minister, the bench ruled.

The ruling paves the way for parliament to reconvene and allow the senate to approve a constitutional amendment bill clipping a prime minister’s powers to cling to power by dissolving parliament whenever they lose a vote of no confidence.

The bill was unanimously approved in the National Assembly and now only awaits the senate’s consent and King Letsie 111’s signature to become law.

Parallel to the process leading to the approval of that bill, a deal was crafted between the ABC’s NEC and the main opposition Democratic Congress (DC) to forge a new coalition government. That proposed coalition is all but certain to topple Dr Thabane from power.  It is that deal and the loss of the prorogation case that seem to have spurred the prime minister, who also faces charges of murdering his ex-wife Lipolelo, into mobilising the army this weekend to go after his opponents and save his government.

After the prime minister’s televised address calling for the army to intervene on his behalf early on Saturday, the Lesotho Defence Force (LDF) deployed heavily around Lesotho. It was reported earlier that the army had arrested police commissioner Holomo Molibeli, his deputy Paseka Mokete and assistant commissioner Beleme Lebajoa.  The three have been instrumental in the murder charges against Dr Thabane and have steadfastly refused to be cowed by the prime minister. Commissioner Molibeli has won all his court cases against Dr Thabane’s bid to fire him. The three were said to be in detention at Makoanyane Barrack.

But Commissioner Molibeli later said that was not the case. After attempts to reach him and his assistants all day yesterday had been unsuccessful, he later told the Sunday Express that reports of his arrest by the army were incorrect.

Critics have slammed yesterday’s army deployment as a dangerous act by a prime minister who is now on his knees and wants to cling to power at all costs despite his promise to retire at the end of July 2020.

A three-member Constitutional Court bench comprising of Justices Sakoane Sakoane, Moroke Mokhesi and Polo Banyane ruled on Friday that Dr Thabane had “failed to apply his mind” and acted “irrationally” by proroguing parliament. This because cabinet had designated parliament among the essential services not to be affected by the lockdown.  The lockdown due to last until 21 April 2020 to help combat Cpovid-19 has confined Basotho to their homes except for those in designated essential services like retail, security and health.

Dr Thabane unilaterally prorogued parliament after King Letsie III had not acted on the premier’s advice to prorogue parliament within a same day 9pm deadline on 20 March 2020.  Dr Thabane argued he was empowered by the constitution to act alone if the King ignored his advice but his critics disagreed and sued him.

The Constitutional Court heard arguments in the case from 3 April to 7 April 2020 and reserved judgement to Friday 17 April 2020.

The BNP, the ABC NEC, the main opposition Democratic Congress (DC) and seven others argued the prorogation was illegal because it was not approved by both King Letsie and Dr Thabane’s coalition partners except Deputy Prime Minister Monyane Moleleki’s Alliance of Democrats (AD) party. The BNP and Labour minister Keketso Rantšo’s Reformed Congress of Lesotho (RCL) argued they had not been consulted despite being members of the four-party governing coalition.

Dr Thabane himself signed the 20 March 2020 government gazette announcing the prorogation instead of King Letsie as per routine protocol.  The applicants deemed the move illegal and treasonous but the premier argued the constitution empowered him to proceed with his actions if the King failed to act on his advice timeously.

But the Constitutional Court found Dr Thabane had prorogued parliament illegally.

“The cabinet has resolved that parliament is an essential service which is not affected by the lockdown, therefore, the question would be why was parliament prorogued if government gazetted it as an essential service? The court does not find an appropriate answer,” said Justice Sakoane, who read the judgment.

“There is no justification for the prorogation. Countries severely hit by the pandemic such as China and Italy have not prorogued (their) parliaments and are busy legislating and mobilising resources to fight the pandemic. The prime minister failed to apply his mind in that due to the prorogation, parliament could not execute its constitutional right to mobilise resources. The prime minister executed his powers in an arbitrary and irrational manner.

“The application succeeds in that the prime minister acted irrationally. It is ordered that the prorogation proclaimed by the prime minister is reviewed, corrected and set aside. Parliament can continue with its business which was interrupted by its purported prorogation ….,” said Judge Sakoane while dismissing the application to have Dr Thabane sacked because the courts don’t have powers to order a prime minister’s firing.

The court also ruled that Dr Thabane had acted irrationally when he gave King Letsie III a very short (same day) notice period to act on the advice to prorogue parliament.  Such a short notice period amounted to a night time ambush of the King, disabling him from applying his mind to the issues placed before him.

The court also ruled that Dr Thabane failed to adhere to all the requirements of section 91(3) upon which he based his unilateral action.

“The fact of the matter is that the King had until 9pm (to prorogue parliament on 20 March 2020) but the court is not told whether the prime minister followed other necessary steps. This includes giving a (further) notice to the King to act after he failed to act at 9pm and reporting to parliament as the prime minister is accountable to parliament on all executive decisions.

“The prime minister prorogued parliament at night and the earliest convenient time to report to parliament would have been over the weekend or on Monday 23 March 2020. The prime minister failed to comply with requirements of 91(3) of the constitution.

“The constitution also guarantees the King the right to be consulted. The fact that the King is obligated to act on the advice of the prime minister does not give the prime minister the right to force the King, especially at night. The short time for the King to act may have set him up for failure. The (prime minister’s) power must be exercised in a manner which is fair and in good faith.”

Section 91(3) of the constitution which Dr Thabane relied upon for his unilateral action empowers the Prime Minister to override the King if the latter ignores the premier’s advice to act within a specified period.  However, the PM can only do so after further informing the King that he now intends to go it alone.

The prime minister is at the earliest opportunity obliged to inform parliament of his actions to go it alone after which his decisions are deemed to have been done by the King.  The court found no evidence Dr Thabane had followed those provisions of the law.

The court’s ruling clears the way for parliament to reconvene and for the premier’s foes to oust him after they first ensure passage of the amendment forestalling him from dissolving parliament after he loses a no confidence vote. That should be easy to achieve as that amendment has already been passed by the National Assembly and only awaits the Senate’s approval.

In January 2020, Dr Thabane had promised to retire at the end of July 2020 as pressure mounted on him after the police accused him and his current young wife, ‘Maesaiah, of having masterminded the killing of his ex-wife Lipolelo. The latter had won the rights in court to be awarded all First Lady privileges despite her no longer living with Dr Thabane. She was killed just as Dr Thabane had returned to office in June 2017.

Dr Thabane however attributed his decision to retire to his old age (he turns 81 next month) and his protracted 50 years in the civil service and in active politics and not to the pressure from the murder charges.  He even promised to relinquish power earlier if his party chose a successor.

However, the premier’s actions since then suggest that his promise to retire was a hoax meant to achieve the exact opposite. He only wanted to buy time to forestall his opponents, who wanted him gone sooner, while plotting to weaken them and manoeuvre to stay in power for much longer, critics say.

Apart from trying to forge a new coalition government with his former arch foe-Mothetjoa Metsing of the Lesotho Congress for Democracy (LCD) and Selibe Mochoboroane’s Movement for Economic Change (MEC) and cling to power beyond his July promised retirement date, the prime minister’s key allies like small businesses minister Chalane Phori have openly declared that Dr Thabane will not retire until his term officially ends in 2022.

Still, unless Dr Thabane uses the army to forcibly keep him in power and neutralise his enemies, the odds remain staked against him.  The deal crafted by his party’s NEC, with the main opposition DC, and which completely excludes him for any leadership post in government, has more numbers than his planned coalition with the LCD and MEC. In any event, it’s not at all clear if the MEC will support Dr Thabane in a new coalition with the LCD as MEC leader, Mochoboroane, has previously turned down overtures to be co-opted into Dr Thabane’s government.

At least 34 MP’s from the ABC’s total tally of 52 in the national assembly signed a pledge supporting the new proposed coalition between the ABC and the DC. The 34 together with the 26 from the DC and other parties supporting Dr Thabane’s ouster — the BNP (five), Popular Front for Democracy (two) and the RCL (one) — easily guarantee the 61-majority required to form the new government in which Finance Minister Moeketsi Majoro is proposed for prime minister with DC leader Mathibeli Mokhothu as deputy.

The Constitutional Court judgement nullifying the prorogation had made this deal all but certain to be achieved hence Dr Thabane’s decision to hastily mobilise the army to deal with people he said are using the courts to topple him from power, various officials told the Sunday Express yesterday.

Dr Thabane’s ABC NEC, the BNP, the BNP’s Nthabiseng Makoae, ABC legislators; ‘Matšepo Ramakoae, ‘Matebatso Doti, Lepota Sekola and senator Kemiso Mosenene, the DC itself and its deputy leader Motlalentoa Letsosa, DC MP Lethusang Kompi were the first to 10th applicants respectively in the anti-prorogation case.

Dr Thabane, Dr Moleleki, His Majesty the King and Attorney General Advocate Haae Phoofolo were the first to fourth respondents respectively.

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