The great debate on the Ninth Amendment

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The article is an interesting intellectual odyssey informed by a decorated scholar. The author commences by stating that: ‘To those of us who lack understanding of constitutional matters, Lesotho’s Constitutional Court’s ruling last February confirmed one of the characters of the Ninth Amendment to Lesotho’s constitution…’ In spite of this telling admission of limitations on the theme of constitutional law, the author nevertheless proceeds to raise some salient points which exude knowledge and expertise in the field of constitutional law but not only that, an effort to try to interpret the implications of the Ninth Amendment which is a subject of debate both in the case and also in the political circles in Lesotho.

I will navigate around the apparent philosophical rationalisations made in the article and project an opposed view to those expressed. I will start by projecting David Hume’s view that passions of electorates rather than reason govern electorates’ behaviour. The past elections are a real illustration of this fact when a political party which is hardly six months’ old assumed state power. I will endeavour to weigh-in on the arguments made on account of my direct participation in the promulgation of the law in issue in order to dispel all the distortions and biased perspectives expressed in the article.

There were selective characterisations of what informed the motivation by Honourable Lekhetho Rakuoane and of course he was at the heart of the project but was supported by the majority of MPs when the administration of the state and the seat of the Head of Government at the time was faced with various challenges which were threatening not only constitutional rule but also the very democracy which the author espouses with a strong voice. The importance of the legislative arm of government is not only that of being the vanguard of constitutional values but also a tool for accountability of the executive arm of government.

The removal of the head of government is not an act of raping democracy as suggested by the writer. The writer tends to overlook the fact that all those MPs including the prime minister are representatives of the people in a parliamentary democracy and he himself is a member of the National Assembly who must enjoy the confidence of its majority. He seems to draw an analogy that the executive led by the prime minister is on the one end while the so-called and selfish MPs are on the other with self-serving ends. Both the executive and the National Assembly are constituted of elected representatives by the people.

The major considerations which informed the amendment were of a public interest and driven by us as representatives of the people. The writer selectively quoted out of context the aspects of the Hansards which bore the inputs of Honourable Lekhetho Rakuoane – that is regrettable. It needs to be remembered that the amendment was a product of a Private Member’s Bill and it was promulgated immediately after the court’s intervention over an otherwise unconstitutional move by the erstwhile Prime Minister to prorogue parliament in order to avoid the consequences of an impending vote-of-no-confidence.

My predecessor in the leadership of the (DC) and a long-standing and decorated Congress movement leader (Prime Minister Mosisili) faced the same constitutional process of a perfected vote-of-no-confidence and advised dissolution of parliament. Honourable. Monyane Moleleki was the suggested candidate to replace prime minister Mosisili. He did not go to court in an endeavour to embroil the judiciary into institutional politics and to seek umbrage in courts of law over political battles like the current Prime Minister.

He was alive to the glaring reality that he had lost the confidence of his peers (elected representatives of the people in the National Assembly) and exercised the right available to him in law at the material time of advising dissolution. This was of course prior to the Ninth Amendment but there was a litigation which served the purpose of achieving the objectives of the 9th Amendment staged by the then deputy leader of the Basotho National Party – Honourable. Joang Molapo flanked by veteran lawyer cum politician – Adv Haae Phoofolo KC which served the purpose of interrogating the propriety of Prime Minister Mosisili’s advise of dissolution when the vote of no confidence had been perfected after all. The issues raised in that litigation were all of a public interest nature and they were materially similar from sound policy considerations which informed the promulgation of the Ninth Amendment.

I am very worried with the selective choice of factors highlighted by the writer which completely mischaracterised the motivations espoused by Honourable Rakuoane and all those who were for the Ninth Amendment. The real question to debate as a political question is whether it is necessary to call elections every time any prime minister loses the confidence of his peers in the National Assembly or whether the change of guard in the head of government is modelled on his enjoyment of confidence of the representatives of the electorates in parliament. The case was decided on some other considerations, the merits of which can best be described by lawyers.

But the political question of a beleaguered prime minister who has endured a vote of no confidence advising dissolution instead of resigning and giving way for the preferred candidate of the legislators has been alive from as far back as the year 2017 when this country witnessed a perfected vote of no confidence for the first time. The answer to this political question will always differ depending on the political mindset that informs the political analysts and their biases. This is not any different from what the current litigation entailed, where an evidently beleaguered prime minister Matekane followed the same avenue but through an act of staging a litigation leading to the entanglement of the judicial arm of government into institutional politics.

The impression expressed in the article seems to suggest that the amendment was an initiative driven and inspired by self-interest when in reality it was and remains in the public interest to guard against the excesses of autocratic prime ministers. I am very cautious when I make this proposition because I was the suggested candidate to substitute the evidently beleaguered Prime Minister, but I will make an effort to highlight this point without any fear of contradiction.

Secondly and most importantly, the writer does not seem to understand that Lesotho is a multi-party parliamentary constitutional democracy under the Westminster Model type of government and the principles of the model clearly allow for an exit or change of government in the manner and context as envisaged in the Ninth Amendment.

In actual fact, the British themselves have had collapses of governments of more than four sitting prime ministers within a lifespan of parliament’s five-year tenure. From 2016 – 2022 Britain witnessed the administration of David Cameron, Theresa May, Boris Johnson and Elizabeth Truss. Did these changes have any bearing or effect on the elective democracy? No! All these transitions were constitutionally recognised and I find it very odd to suggest that with each exit of a prime minister through constitutionally recognised channels there has to be elections so that the so-called will of the electorates is realised. When all these British prime ministers exited office there was no need for dissolution of parliament and there were public interest considerations which informed those circumstances.

It is both wrong and disingenuous for the author to suggest that the exit of prime minister through the instrumentality of a vote-of-no-confidence amounts to an act of hijacking the electorate’s right or freedom to choose a government by legislators as suggested or at all. The article is openly biased against the amendment and one would have thought an academic discourse on the subject of such grave national importance required at the very least a balanced academic discourse. The author concludes that the NinthAmendment is undemocratic but also anti-democracy and anti-democratic and he further contends that this is one of the reasons for the deep resentment towards the amendment among sections of the electorate.

This view is unsupported by scientific evidence to that effect but I will assume in favour of this view because he is one of those electorates aggrieved with this amendment. This debate demands that there be an exposition of the distinctions between direct and indirect or representative democracy. The biased views expressed in the article project a presumptuous proposition that the only recognised measure of democracy is realised through direct democracy to the exclusion of indirect or representative democracy which is the essence of Section 20 of the same constitution under the microscope.

The mutual inclusivity of direct and representative democracy is laid bare in the constitution of Lesotho. The author argues that the amendment is anti-democratic for two reasons, at least.
First, through it, MPs of the day arrogated themselves society’s fundamental right and power to vote for a government of their choice. In the system Basotho adopted at independence, MPs appoint a government at the beginning of a life of a parliament on the basis of a mandate given at most recent elections.

In the wake of the Ninth Amendment, MPs can now bring such a government down – and agree on another one among themselves without seeking a fresh mandate from society. In this way, the amendment has the effect of marginalising society from participation in decisions about who rules them and how they are ruled.

It adds to many other ways in which MPs have robbed the electorate of their rights and power to choose who rules them. Second, the Ninth Amendment is anti-democracy and anti-democratic because, through it, MPs of the day arrogated themselves the electorate’s right and power without consulting the owners of the right, the electorate.

This argument loses sight of the fact that the same evil can be attributed to a prime minister. Lesotho’s experience with both prorogation and dissolution is marred with self-serving ends expressed by prime ministers desperately using both tools not for the so-called electorate or public interest but for their own self-interests.

It is entirely disingenuous to suggest that the only legitimate way in which a change of government can be made is through elections and that the electorate bears the exclusive baton of choosing a legitimate government when the same constitution accepts both direct and indirect participation in government through MPs.

Thirdly, the writer contends that the Ninth Amendment is an addition to a list of amendments which MPs passed without a plebiscite despite the fact that the amendments were related to questions of how we are ruled, and how the country is developed. A plebiscite is a constitutional requirement in this jurisdiction which is governed by Section 85 of the Constitution and also the Referendum Act.

This conclusion cannot be made without an enquiry whether the relevant amendment needed to go through all the conditions imposed by the constitution for a referendum. The conclusive reasoning is made without this consideration and hence flawed. The writer goes on to suggest that the factors that informed the fourth Amendment leading to the increase of MPs from 80 to 120 was for self-serving ends and was never done with the concurrence of the electorate presumably through a referendum.

Was this a necessary legal requirement? The writer is not forthcoming on this subject. It is crucially important for the writer to accept and perhaps admit that elections do not serve as a barometer for democracy or at best, the best choice of who shall govern the state or the governance of the state as it were. There are many features which play a part for fruitful democratic process to be met. Even better, a suggestion that real power is in the electorate and that they drive the decisions leading to the choice of government is both irrational and illusory.

We would first need to probe Lesotho’s constitution and reconcile section 20 with section 87 (2) and we are led to the inevitable conclusion that the appointment of a first minister or prime minister for that matter is not by the choice of the electorate but by MPs themselves. The MPs are representatives of the same people. To suggest that they run away with the will of the people when they remove a sitting prime minister is to speak with a forked tongue.

The tool of prorogation and dissolution of parliament can be used to achieve the same ends by the prime minister and there must be tools in place to guard against such unconstitutional behaviour. This is the framework in Lesotho’s constitution which the Ninth Amendment sought to achieve. The same constitution both before and after the criticized Ninth Amendment creates several pathways for the change of government or to put it bluntly, the exit of a first minister.

The writer is suggestive that the only legitimate way in which a government can be changed is through the instrumentality of elections and this cannot be true and this is unsupported by the constitution both before and after the criticized Ninth Amendment. A change of government can legitimately be done through a vote-of-no-confidence and there is nothing inherently evil about this important tool of constitutional removal of a head of government. The argument bears both a head and tail of the same coin. The inherent danger of a parochial criticism is that it almost invariably showcases one biased perspective to the exclusion of the parallel end.

In essence, the writer conclusively makes a point that the ninth amendment serves as an effort to disempower the electorates from the choice of government to rule them. Is this accurate? What is government? The appointment of a first minister is triggered by the MPs themselves and the Council of State and the Head of State then carries out the appointment process. The features of the ninth amendment which are seldom discussed by all and sundry and which have played an important role in guarding against autocratic behaviour of prime ministers are the following: Firstly, it scaled down the timeframe upon which the legislative arm of government could meet following the invocation of the prorogation clause embodied in the constitution.

The time was expansive and long enough to cover a period of 12 months and if was scaled down to two months with the very desired-end to curb the excesses of an exuberant prime minister using it to stall his exit via a constitutionally recognised vote-of-no-confidence. Secondly, it expanded and or extended the time-frame upon which the legislative arm of government could convene following its dissolution and after the holding of elections from 14 to 30days. This tool was merely utilitarian given the advent of coalition politics in this jurisdiction.

Thirdly, it provides for the continuity of the lifespan of the parliament in that upon death, retirement or resignation, a member of the national assembly who commands the majority in parliament may subsequently be considered by the King for appointment as prime minister. If such a member is not ascertainable within a period of 60 days, the Council of State may then advise dissolution of parliament. This development in like manner is both utilitarian and very crucial as it shall help those legitimately elected to proceed with their constitutional mandate without there being any need for fresh elections.

Fourthly, and most controversially and which is the major gripe of the writer and certain sectors in the political spectrum, it deprives the beleaguered prime minister who has endured a perfected vote of no confidence of the opportunity of causing for the dissolution of parliament without the endorsement of two-thirds majority of the members of the National Assembly. On the same note, even a prorogation tool cannot be embarked upon the same conditions. The debate of whether this was for self-serving ends or not must be paired with the argument of a beleaguered prime minister using the same tool and invoking either prorogation or dissolution for self-serving ends. The same arguments equally apply for a Prime Minister.

As we await the verdict of the apex court, I urge citizens to be wary of biased political outlook disguised as scholarly outlook but to move beyond partisan institutional politics. The democratic process is not about factionalism or divisive views but about openly debating and discussing issues of national concern with an open mind. This is what we have since learnt as the DC from the recent elections and this is what we intend to instill as our mantra going forward. ‘Nete…. Sechaba ke Poho!

Hon Mathibeli Mokhothu