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Phoofolo throws weight behind Thabane

  • insists PM should lead new coalition
  • says current efforts to oust premier amounts to a coup d’état

Pascalinah Kabi

LESOTHO is now at the cusp of a constitutional crisis after Attorney General (AG), Haae Phoofolo, declared yesterday that embattled Prime Minister Thomas Thabane is acting within his rights by insisting he should lead the new coalition due to be sworn in next Friday.

The country has been anticipating Finance Minister Moeketsi Majoro to lead the new coalition after Mr Thabane accepted the collapse of his current government last Monday. Mr Thabane had even appended his signature to the new coalition deal fronted by his All Basotho Convention (ABC) and the main opposition Democratic Congress (DC).

The two biggest parties announced the new coalition agreement early last month. The deal excluded Mr Thabane, who had been wholly disowned by his own party in February, soon after the police accused him of murdering his ex-wife Lipolelo, from any leadership position.

That new coalition deal is also supported by eight other smaller parties. It effectively collapsed Mr Thabane’s current coalition of his ABC, Deputy Prime Minister Monyane Moleleki’s Alliance of Democrats (AD), Communications Minister Thesele Maseribane’s Basotho National Party (BNP) and Labour Minister Keketso Rantšo’s Reformed Congress of Lesotho (RCL).

Speaker of the National Assembly, Sephiri Motanyane, on Monday formally acknowledged the collapse of the current coalition. He had then adjourned the House to Friday 22 May 2020 to enable processes leading to the installation of a new government to unfold. Those processes were anchored on Mr Thabane’s expected formal resignation. That would have enabled King Letsie III to nominate a new prime minister to form government. In fact, Mr Thabane, by endorsing the ABC/DC deal to elevate Dr Majoro, had created the impression that he would head straight to King Letsie III to submit his resignation letter after the Monday National Assembly proceedings.

But he did not. By the time of going to print yesterday, Mr Thabane had still not resigned.  His cronies claimed in earlier interviews that he had endorsed the new ABC/DC deal under the understanding that he (Thabane) would himself lead the new coalition until his desired retirement date of 31 July 2020.

But the ABC national executive committee (NEC) insists there was never such a deal. ABC deputy leader Nqosa Mahao yesterday furiously lambasted AG Phoofolo’s legal opinion as being irredeemably misguided.

Lesotho now faces a severe constitutional crisis as the King cannot swear in a new Prime Minister on Friday on top of another who has not resigned. Dr Majoro’s Friday swearing in now hinges on whether or not Mr Thabane would have resigned by then.  The premier has hitherto refused to resign. He is likely to keep digging in after being emboldened by Advocate Phoofolo’s opinion issued on Wednesday.

The premise of the AG’s opinion is that for Dr Majoro to be sworn in, the current Prime Minister (Thabane) must either have resigned, retired or died. In the absence of those three circumstances, a vote of no confidence must be moved and approved in parliament. If that does not happen, then Mr Thabane is right to claim premiership of the existing regime or any new one to be formed for that matter.

Any attempts to oust him without any of the above circumstances subsisting would amount to a coup d’état, AG Phoofolo says.

But Prof Nqosa Mahao is dismissing Adv Phoofolo’s opinion as “fake” and “misdirected”.  Its only value was to plunge Lesotho into a constitutional crisis by emboldening Mr Thabane to continue on his misguided path, the ABC deputy leader said.

Prof Mahao said contrary to Adv Phoofolo’s opinion, a no confidence motion was not necessary because Mr Thabane had appended his signature to the ABC letter terminating the current coalition agreement formed after the 3 June 2017 snap polls.

He said Mr Thabane was no longer prime minister after that Monday termination. Lesotho currently has no prime minister. All the parties in the governing coalition had submitted their letters to Speaker Motanyane, confirming the collapse of the current government. Prof Mahao said the parties now poised to front the new coalition – the ABC and DC – had nominated a new premier, Dr Majoro.  All that was now left was for the finance minister to be sworn in Friday. AG Phoofolo’s opinion was therefore only muddying the waters, he said.

Mr Motanyane had accepted termination letters by the ABC, BNP and RCL.  The AD submitted its letter after it became clear its efforts to save the current coalition were leading nowhere.

National Assembly Clerk, Advocate Fine Maema, confirmed the King had been formally notified of the collapse of the government and the nomination of a new leader to become prime minister.

It seems the adjournment of parliament to 22 May 2020 was in anticipation of Mr Thabane’s resignation to enable the King to move forward with inviting a new leader to form government.  His resignation would have enabled Mr Thabane the dignified exit brokered by South African envoy Jeff Radebe.

Mr Thabane is using Section 87 (2) of the constitution to frustrate Dr Majoro’s ascendancy. It states that “the King shall appoint as prime minister, the member of the national assembly who appears to the Council of State to be the leader of the political party or coalition of political parties that will command the support of a majority of the members of the national assembly”.

Mr Thabane’s key ally – Small Business, Cooperatives and Marketing minister Chalane Phori – insists Dr Majoro is not a leader of a party and should not be allowed to form the government. Mr Thabane, who is still the leader of the ABC, despite his estrangement from its NEC, must lead any new coalition until his own set retirement date of end of July 2020, Mr Phori argues.

Mr Phori says he and Mr Thabane and nearly a dozen other MPS, who had refused to endorse the ABC-DC deal, had subsequently done so because they had been promised that Mr Thabane would lead the new coalition at least until his planned retirement on 31 July 2020. The ABC’s NEC vehemently rejects the claim.

Adv Phoofolo repeats Messrs Phori and others’ claims that Mr Thabane was promised leadership of the proposed ABC-DC coalition as a precondition for his support of the termination of the current government.

He says it therefore does not make sense for the ABC and DC to then turn around and push for his resignation.

He says Mr Thabane must be left alone to voluntarily leave office, failing which they should file a no confidence motion if they now want to get rid of him.

Without mentioning names, Adv Phoofolo suggests that Dr Majoro’s name as incoming prime minister can only be forwarded to the Council of State after a successful vote of no confidence against Mr Thabane in parliament.  However, the name has already been forwarded to the King, a move now deemed as “illegal” by AG Phoofolo.

The attorney-general says the constitution is clear that the office of the prime minister can only be declared vacant in the event of the incumbent dying, retiring or resigning. He said only then can the King appoint a successor who appears to be a leader of a political party or coalition of political parties in parliament.

“None of the events mentioned above (death, retirement or resignation) has occurred,” Adv Phoofolo states adding, “Certainly, the prime minister is still alive”.

He says Mr Thabane has on several occasions voluntarily indicated his intention to retire from office on or before end of July 2020.  He says it would be unlawful for the prime minister to be forced out of office through “a process that is not sanctioned by the constitution”.

“The irony of it all is that the prime minister is still the leader of a party which has the majority in the new coalition.

“It could be unlawful to force him out of office without following the requirements of the law as that would amount to a coup.”

He argues that it would be untenable to request the King to swear in one prime minister over another.

The attorney general says the Monday events in parliament, in which the current coalition was formally terminated, could not be construed as a no confidence motion against Mr Thabane.

“All that the speaker did was to verify the names of the ABC parliamentarians who were joining the coalition with the DC party and thereafter adjourned the House after stating, among other things, that the prime minister and ministers know to whom to tender their resignations.

“There was therefore no formal vote in parliament for or against the prime minister. The members of the coalition under the leader of the opposition (Mr Mokhothu) supported the move to have the prime minister lead the new coalition. “With respect to the ABC-DC coalition, it does not make sense to say that of the prime minister (that he leads the new coalition) and then push vehemently for his resignation immediately thereafter…

“The speaker cannot with respect at this very stage submit a name of the prime minister’s successor to His Majesty. In any event such a selection has to be subjected to a vote of all members for the sake of transparency.”

Adv Phoofolo says it is advisable for the parties to negotiate and resolve the matter amicably with Mr Thabane.  However, in light of the PM’s intransigence, an amicable solution now seems unlikely.

The AG states that the purpose of his advice is to “assist in making a tidy, unchallenged transition for eternal peace, trust and security”.

But the ABC NEC is having none of his views.

“It is fake. We don’t agree with that legal opinion,” roared Prof Mahao yesterday. “The law is an interpretation of facts and application of the rules. What I find strange is that nowhere does Ntate Phoofolo pretend to interpret the processes that unfolded in the National Assembly so that he can draw a legal opinion on those processes.

“For example, the house unanimously agreed to bring down a government.  Essentially there was no party that supported the continuity of that government. Now you have to interpret that; what does that mean legally and constitutionally? Clearly there is no government and no prime minister. He (Mr Thabane) also appended his signature supporting the dismantlement of his government. So, what is left of that government?”

Prof Mahao said he could not comprehend why the AG was not acknowledging the fact that the parties to the current coalition had all signed up to its termination.

“That is why I am saying that that opinion is fake. It is a non-starter. So, we think he has misdirected himself, misled the prime minister and unfortunately that has landed us in what could be a constitutional crisis.”

He said Mr Thabane’s desire to lead the new coalition until end of May or July 2020 had been discussed by MPs. There was unanimity that it would be a waste of time and resources.  There was consensus Dr Majoro should immediately take over and lead the country.

“That (Dr Majoro takes over) was a unanimous decision of a joint (ABC) NEC/parliamentary caucus. That’s where we are but we are suddenly seeing the resistance that Ntate Phoofolo’s advice is attempting to give credibility to.”

In a televised speech a fortnight ago, Mr Thabane said he would retire end of July 2020 or earlier on 29 May if processes to facilitate his retirement had been concluded. His office later said it had been “a slip of the tongue” for Mr Thabane to give 29 May 2020 as possible date for his departure. It said he would retire 12 June earliest.

Prof Mahao said Adv Phoofolo’s legal opinion was totally different from another one he had given to Speaker Motanyane last August. In that opinion, AG Phoofolo said any MP could be appointed to become PM even if they were not leading a political party. The Speaker had sought the AG’s opinion after a motion of no confidence had been moved against Mr Thabane. The motion sought to have the premier replaced by ABC chairperson and Mosalemane legislator, Samuel Rapapa, who is not a leader of a political party. AG Phoofolo said then there was nothing wrong with the motion.

“It looks as though he was called in and told to write his latest opinion that Mr Thabane shouldn’t resign,” Prof Mahao said of Adv Phoofolo’s latest opinion.

Advocate Phoofolo’s latest opinion is nevertheless not much about the stature of a person who should become PM. It seems to be merely addressing the circumstances under which a new PM can be appointed.

Prof Mahao said a much talked about meeting with Mr Thabane to persuade him to resign last week had not happened because “those close to the premier made sure a meeting with him would not happen”.

He said they were first told that Mr Thabane was going to Bloemfontein for medical check-ups on Wednesday. They were further told that a Thursday or Friday appointment could not happen because the premier would travel to Bloemfontein again and Mokhotlong respectively.

“We have not met with him. It is as difficult to meet Ntate Thabane as it is to see God’s face. People who control him deliberately ensure that there is no access to him. This is not the first time we are struggling to have a meeting with him,” Prof Mahao said.

DC deputy leader Motlalentoa Letsosa echoed Prof Mahao’s sentiments, saying Adv Phoofolo’s opinion was misguided as it did not require a no confidence vote against Mr Thabane for him to be replaced by Dr Majoro at the head of the proposed new coalition.


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