IN concurring with the Court of Appeal’s majority judgement, Justice Petrus Damaseb said he was concerned that the Ninth Amendment gives the MPs too much power. Justice Damaseb said he supported striking down the amendment because it meant that once the MPs have made their decision to oust a sitting prime minister, “both he and the King have no choice in the matter”.
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He said while the amendment made it easier for MPs to remove the Prime Minister through a vote of no confidence, it has made it impossible for the Prime Minister to test the strength of his popularity and acceptance by the general public using a fresh election.
“The King’s role and that of the Council of State in the dissolution process have also effectively been removed,” Justice Damaseb said.
He observed that if the King calls for a fresh election following a vote of no confidence and ultimately dissolution of parliament, MPs “who participated in a vote of no confidence may not necessarily make it onto the ballot paper in the ensuing election”.
“It is thus correct to say that the 9th Amendment was intended purely for preservation of the interests of Parliamentarians to the exclusion of the interests of the members of the public guaranteed in terms of section 20 (of the constitution),” Justice Damaseb said.
“If this is not a destruction of the basic structure of democracy constructed under the constitution, then nothing is,” he said.
He said the dissolution of parliament and how it is managed in a Westminster system, which Lesotho has adopted, is unique in that it identifies dissolution as a prerogative of the Crown.
“It is a prerogative of the King as an Executive Authority of the Kingdom of Lesotho. It is not a majoritarian mechanism left to elected parliamentarians,” he said.
“It is the King who dissolves Parliament, and on the original version of the Constitution he exercised that prerogative on the advice of the Prime Minister, in a typically Westminster fashion.”
He said the amendment departs in a stark revolutionary way from that Westminster feature.
The amendment, he said, makes the Prime Minister “the conduit of the wishes of the Parliamentarians on a matter in respect of which the Prime Minister traditionally plays a role”.
“This does not fit within the scheme of the Westminster constitutional practice. In terms of the Westminster practice, it is only the Prime Minister who has the audience with the Monarch in relation to dissolution.”
The judge said the potential of the Prime Minister’s arbitrary exercise of executive power through the monarch was tempered by the knowledge that the Legislature may remove him and his government through a vote of no confidence.
In addition, he said, any possible abuse by the legislature of the power of a vote of no confidence was kept in check as the King had the ultimate say acting on the advice of the Council of State.
He observed that the Legislature’s potential abuse of the power of the vote of no confidence was moderated and disciplined by the prospect that the Prime Minister might advise dissolution in the face of such a vote.
“Dissolution would then restore ultimate power to the voters to elect a new government.”
“The Ninth Amendment disturbed that layered balance and, most importantly, rendered the Legislature above popular scrutiny.”
He said the crucial moderating tool, the will of the people, to control any possible abuse of the vote of no confidence is now removed.
“The Prime Minister may no longer dissolve Parliament so that the electorate choose a new Government. The Legislature has in effect usurped that power.”
He said the amendment was void from the date it was enacted on the doctrine of objective unconstitutionality.
Staff Reporter
