THE opposition is appealing a judgment this week that nullified a constitutional amendment that would block the prime minister from dissolving parliament after he loses a no-confidence vote. Mathibeli Mokhothu, who is the leader of the opposition, told thepost yesterday that they had since instructed their lawyers to take the matter to the Court of Appeal. In a judgement delivered last Friday, Justices Molefi Makara and Tšeliso Monaphathi found that the constitutional amendment was unconstitutional while Justice Keketso Moahloli dissented.
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The two judges gave three main reasons for granting the application to nullify the amendment. The case was filed by Lejone Puseletso, who is a Revolution for Prosperity (RFP) backbencher.
The judges found “parliament to “have transgressed the basic character of our democratic constitution by . . . disregarding the democratically expressed views of the people and unilaterally legislated as it wanted and excluded the inherent right of the electorate to participate in the critical determinations despite the directness of its interest”.
“This has happened after millions of maloti and dollars from the international partners was invested for the electorate to introduce the constitutional amendments through which it would realise the Lesotho that it wants,” Justice Makara said.
He said parliament had also unilaterally introduced “into the Ninth Amendment, the provisions that excluded the inherent right of the electorate to participate in the stated critical processes despite its directness and substantial interest over them”.
Justice Makara said parliament had also ignored “the true status of the Prime Minister and the interest of the electorate in that political office and instead, introduced the regimen that effectively reduced it to the level of being held exclusively at the mercy of parliamentarians”.
Justice Makara said “parliament deviated from its key mandate concerning the impugned provisions in the Ninth Amendment which for the reasons already elaborately stated, undermined the basic structure of the democratic constitution of Lesotho”.
“The 9th amendment to section 87 (5) of the Constitution is declared unconstitutional to the extent that it violates the basic structure of the democratic Constitution of Lesotho as provided in Section 1 of the Constitution of Lesotho 1993”.
The court has also found that Section 83 (4) and 87 (5) are equally declared unconstitutional for the same reason.
Section 83 (4) provides that if the prime minister advises the King to dissolve parliament and the King finds that the government can be carried out without the dissolution of parliament, the Council of State can advise him to refuse to dissolve it.
It also provides that if the prime minister does not resign within three days or advise the King to dissolve parliament after losing a vote-of-no confidence, the King may dissolve it on the advice of the Council of State.
It also gives the King the power to dissolve parliament if the position of prime minister is vacant and no political party leader or a coalition in parliament commands the majority.
Section 87 (5) says if the prime minister loses the vote of no confidence in parliament, the King may dissolve parliament at the advice of the Council of State.
These sections are the ones that the ninth amendment to the constitution had repealed.
The amendment provides that the prime minister should step down once he loses the vote of no confidence, which happened in 2020 when Prime Minister Thomas Thabane lost the vote and was immediately replaced by Prime Minister Moeketsi Majoro without parliament being dissolved.
The court declined to decide on Puseletso’s application to defer the passing of the vote-of-no-confidence on Prime Minister Sam Matekane pending the conclusion of the national reforms process.
Justice Moahloli in his dissenting judgement said he was “unable to agree with the conclusions and order in the judgement”.
He said regarding the application to declare the ninth amendment unconstitutional, if proper procedures were followed it would be unassailable.
He argued that the ninth amendment was properly done because it was arrived at following the constitutional provisions and it has not tampered with the unchangeable and intractable pillars of the constitution.
“Accordingly Prayer A would be dismissed,” Justice Moahloli said.
In this prayer, Puseletso asked the court to declare the amendment unconstitutional.
He also said in Prayer B, “I’ve found that the court lacked authority to issue the type of order” Puseletso had asked for.
Puseletso had asked the court to declare section 83 (4) and section 87 (5) unconstitutional.
Justice Moahloli said the doctrine of separation of powers does not allow the court to interfere with parliament’s duties as enshrined in the constitution.
“Prayer B would be dismissed,” he said.
Staff Reporter
