BASOTHO National Party (BNP) spokesperson Machesetsa Mofomobe and political activist Mohato Seleke have filed an urgent constitutional court application seeking to interdict Finance Minister Tlohang Sekhamane from withdrawing from the main bank account of the government starting on 31 March 2017.
The application, which was made on Thursday, follows another constitutional court application by prominent lawyer, Advocate Haae Phoofolo King’s Counsel (KC), seeking to stay the decision by King Letsie III to dissolve parliament and call for the 3 June 2017 snap elections.
Mr Sekhamane and Attorney General (AG) Adv Tšokolo Makhethe KC are cited as first and second respondent respectively in the case.
In their notice of constitutional motion, Messrs Mofomobe and Seleke want the minister to be ordered to stop authorising any withdrawals from the Consolidated Fund — a term used in many countries with political systems derived from the Westminster system to describe the main bank account of the government.
They also seek the court’s declaration that Mr Sekhamane did not table budgetary estimates for the 2017/8 financial year in the National Assembly ahead of the no-confidence motion that toppled Prime Minister Pakalitha Mosisili’s government.
The duo argues that any authorisation of withdrawals from the Consolidated Fund by Mr Sekhamane to pay for government expenditure for the 2017/18 financial year would contravene section 113 (a) of the Constitution read with section 18 of the Public Financial Management and Accountability Act (2011) “and therefore null and void”.
Section 113 (a) of the Constitution states: “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“(a) the moneys so authorised to be withdrawn in advance of the Appropriation Act for any financial year shall not exceed in total one-third of the sums included in the estimates of expenditure for the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.”
Messrs Mofomobe and Seleke also seek to stop Mr Sekhamane from authorising withdrawals from the Consolidated Fund to bankroll the snap polls.
They further seek a declaration that any authorisation of withdrawals from the Consolidated Fund for using any unspent allocated money under the Appropriation (2016/2017) Act, 2016 government expenditure for financial year 2017/18 be rendered null and void.
Alternative to the aforementioned prayers, Messrs Mofomobe and Seleke seek a declaration that the dissolution of parliament on 6 March 2017 effectively terminated all business in the National Assembly “including such estimates for revenues and expenditures of Lesotho for financial year 2017/18”.
The duo also wants the respondents to foot the costs of suit in the event of opposition.
Mr Mofomobe yesterday told the Sunday Express the date for the hearing of the application was expected to be set tomorrow.
The court application was made after Adv Phoofolo KC’s constitutional court challenge on Thursday which cites Dr Mosisili, the Council of State, King Letsie III, Adv Makhethe KC and Mr Sekhamane as respondents.
The applicants, who also include BNP deputy leader Joang Molapo, seek an order for Dr Mosisili to provide the court with the record of proceedings that led to the decision to dissolve parliament.
They argue that the King’s decision to dissolve parliament without the input of the Council of State violated His Majesty’s constitutional duties.
King Letsie III dissolved parliament after the passing of a no-confidence vote on the seven-party coalition government on 1 March 2017.
Dr Mosisili was toppled by a coalition consisting of the All Basotho Convention (ABC), Alliance of Democrats (AD), BNP and Reformed Congress of Lesotho after garnering the support of up to 74 MPs in the 120-member National Assembly, which just requires 61 seats to form government.
The opposition wanted to form government immediately after succeeding in the no-confidence vote, and replace Dr Mosisili with AD leader Monyane Moleleki.
However, the premier advised His Majesty to dissolve parliament to facilitate the call for Lesotho’s third general elections in five years.
Despite the opposition bloc petitioning King Letsie III to reject the government’s advice and for the monarch to convene the Council of State King Letsie III went on to dissolve parliament.
The Council of State advises the King on key constitutional functions including calling for elections. It consists of Dr Mosisili, National Assembly Speaker Ntlhoi Motsamai, High Court Justices ’Maseshophe Hlajoane and Lisebo Chaka–Makhooane, Attorney-General Tšokolo Makhethe, Lesotho Defence Force commander Lt-Gen Khoantle Motšomotšo, Commissioner of Police Molahlehi Letsoepa, Law Society President Attorney Tumisang Mosotho, Principal Chief Mathealira Seeiso, ABC leader Thomas Thabane and BNP leader Thesele ’Maseribane.