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Relief for Matekane

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…as court scraps Ninth Amendment to the Constitution

…PM can now dissolve parly and call for elections to avoid immediate ouster

Moorosi Tsiane

PRIME Minister Sam Matekane can now advice His Majesty King Letsie III to dissolve parliament and call for snap elections to avoid being ousted via a parliamentary no confidence motion.

This after the Constitutional Court nullified the Ninth Amendment to the Constitution on Friday and essentially threw Lesotho back to the circumstances that prevailed before the amendment wherein a Prime Minister could resort to dissolving parliament and advising the King to call for snap elections to circumvent a no confidence motion.

The Ninth Amendment was enacted by parliament in May 2020 to prevent a prime minister from approaching the King to dissolve parliament when faced with a vote of no confidence motion. Instead, the amendment forced a Prime Minister to step down and allow members of parliament who constitute a majority to select his replacement without having to go for general elections.

The Amendment had been effected to try and forestall the turmoil that had gripped the country following successful vote of no confidence motions against sitting Prime Ministers that resulted in snap elections in 2015 won by Pakalitha Mosisili.

The Constitutional Court bench of Justices T?eliso Monapathi and Molefi Makara declared the Ninth Amendment to the Constitution inconsistent with the basic tenets of the Constitution, particularly Section 1 which states that Lesotho shall be a democratic Kingdom. The two judges said the modification of this supreme law infringed the principles of democracy.

However, the third judge who also constituted the bench which adjudicated over the matter, Justice Keketso Moahloli, did not agree with his colleagues that the Ninth Amendment was unlawful. Instead, he said it only failed to pass legal muster because proper channels, prescribed by section 85 of the Constitution, in amending the supreme law, were not followed in effecting it.

Still, the judges scrapped the Ninth Amendment to the Constitution, albeit for different reasons. The decision potentially saves premier Matekane from being ousted. He can advise the King to dissolve parliament and order fresh elections if MPs try to oust him again.

Because many of the MPs from the opposition are in the National Assembly, courtesy of proportional representation (PR) seats, they may not want to go this route. They are not guaranteed to return to the House if fresh elections are ordered.  They may thus become less enthusiastic about a no confidence motion.

Before the May 2020 enactment of the Ninth Amendment to the Constitution, section 83(4) of the Constitution allowed the prime minister to advice His Majesty to call for general elections when he (prime minister) risked losing a no confidence motion. The amendment scrapped sections 83(4) and 87.5 (a) of the Constitution to empower parliament to, through a majority vote, remove and replace a Prime Minister without having to go for general elections.

The Amendment ensured that then Prime Minister Thomas Thabane was not tempted to dissolve parliament when his party rebelled against him in 2020. He was instead forced to resign and got replaced with Moeketsi Majoro who was voted into office by a majority of MPs from mainly Mr Thabane’s All Basotho Convention (ABC) and the Democratic Congress (DC).

If the motion of no confidence filed against Mr Matekane on 13 October 2023, had succeeded, he would not have had the power to save his skin by dissolving parliament and calling for fresh elections.  Now he can.  His Revolution For Prosperity (RFP) legislator for Thaba Moea constituency, Lejone Puseletso, had rushed to the Constitutional Court on 16 October 2023 to thwart MPs who had seemed set to oust Mr Matekane that day.

The court challenge had saved the day for the premier. It had appeared certain that he will be ousted after the opposition had paraded 61 MPs, enough to pass the measure.

The motion had been filed by the Basotho National Party (BNP) leader, Machesetsa Mofomobe, and backed by the Democratic Congress (DC) Makhaleng MP, Mootsi Lehata. The duo had wanted to replace Mr Matekane with the DC leader, Mathibeli Mokhothu as the new Prime Minister. They claimed to have garnered the support of 61 MPs including some rebellious ones from the RFP itself.

Mr Lejone’s case eventually opened on 7 December 2023.  Judgement was reserved on 14 December 2023.

Mr Puseletso had argued through his lawyer, Advocate Motiea Teele KC, that the Ninth Amendment to the Constitution was in violation of Section 86 of the Constitution which reads: “The executive authority of Lesotho is vested in the King, and subject to the provisions of this Constitution, shall be exercised by him through officers or authorities of the government”. He argued that the amendment deprived the King of his right to dissolve parliament. It also violated the structure of democracy prescribed in section 1 of the Constitution.

Attorney Monaheng Rasekoai, representing the opposition parties seeking to overthrow Mr Matekane, had counter-argued that Mr Puseletso’s petition was a mere “opportunistic” attempt to try and save the Prime Minister from facing ouster through a legitimate constitutional process.  Mr Rasekoai argued that the courts had no right to interfere with parliamentary processes.  Legislators had effected the ninth amendment to facilitate the change of prime ministers without the costly process of convening elections each time a prime minister faced a no confidence vote.

Mr Puseletso won the day however in terms of his challenge of the Ninth Amendment.

The majority judgment read by Justice Makaras stated:

“In the premises the final decision stands as follows:

  1. The Ninth Amendment to section 87(5) (a) of the constitution is declared unconstitutional to the extent that it violates basic structures of the democratic constitution of Lesotho as provided in section 1 of the Constitution of Lesotho.
  2. The same applies to section 83(4). It is equally declared unconstitutionalto the same extent.
  3. The court declines to decide on the prayer by the applicant that the process of the passing of vote of no confidence in parliament be deferred pending the conclusion of the reforms process in terms of which the parliament shall promulgate the comprehensive provisions to regulate the passing of the vote of no confidence.
  4. There is no order on costs because this is a constitutional matter.”

Reading his dissenting judgement, Justice Moahloli ruled that parliament had not followed the requirements of section 85 of the Constitution when effecting the Ninth Amendment. However, he did not read the reasons for his decision due to time constraints. Copies of the judgments were not immediately released.

“Unfortunately, I am unable to agree with the conclusions and order in that judgement regarding prayer A which deals with the constitutionality of the Ninth amendment. I found that there is a procedure which is prescribed by section 85 of the Constitution regarding the alteration of the constitution and this procedure had to be followed. If this was properly done, the alteration was unassailable…..,” said Justice Moahloli.  The judge effectively nullified the Ninth Amendment but for different reasons.

Mr Puseletso had also asked the Constitutional Court to bar parliament from passing a no confidence motion against the Prime Minister until the national reforms process has been been fully completed.

However, Justice Makara said he and Justice Monapathi declined to pronounce themselves on the matter.

For his part, Justice Moahloli said the courts did not have powers to order parliament to defer the motion.

“I found that this court has no authority or competence to issue the type of order sought by the applicant. The doctrine of separation of powers does not allow the courts to interfere in the lawful exercise of powers by the legislature. It therefore did not come as a surprise that applicants’ counsel wisely decided not to insist on this prayer. In the results prayer B (deference of motion) would be dismissed as well,” Justice Moahloli said.

Since the three judges did not entertain the prayer to defer the no confidence motion until after the national reforms process, it means that motion can be reinstated in parliament.

However, Mr Mofomobe, who had initially introduced it, told this publication yesterday that they intend to approach the Court of Appeal to overturn the Constitutional Court judgement.

 

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