IN a dissenting judgement, the Court of Appeal’s Justice Van Der Westhuizen says the ninth amendment did not violate the basic structure of the constitution and should therefore not have been struck down by the Constitutional Court. Justice Van Der Westhuizen was dissenting to the Court of Appeal judgement that dismissed the opposition’s appeal against the High Court judgement declaring the ninth amendment unconstitutional.
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Passed in 2020, the ninth amendment blocks the prime minister from advising the King to dissolve parliament and call a fresh election after losing a no-confidence vote.
Essentially, it meant the MPs could remove the prime minister without fear of having to be subjected to a fresh election.
It is the amendment that the MPs used to topple Prime Minister Tom Thabane and replace him with Dr Moeketsi Majoro in 2020.
The tables however turned when they tried to use it again to push out Prime Minister Sam Matekane last October.
Instead of capitulating, Matekane mounted a counterattack that included the Revolution for Prosperity (RFP)’s Lejone Puseletso launching an urgent application to get the amendment declared unconstitutional.
In February, the Constitutional Court struck down the amendment after agreeing with Puseletso’s main argument that it violated the basic structure of the constitution.
The opposition instantly appealed, arguing that the Constitutional Court had misdirected itself.
The five Court of Appeal judges who presided over the landmark case could not entirely agree on the ruling.
In a majority judgement, written by Court of Appeal President Justice Kananelo Mosito, the three judges agreed with the ruling of the Constitutional Court and dismissed the opposition’s appeal (See related story).
Justice Musonda and Justice Damaseb concurred.
Justice Mosito ruled that the ninth amendment fundamentally altered the basic structure of the constitution by “blocking the Prime Minister’s power to advise the King to dissolve parliament and mandating the King’s appointment of the Prime Minister based solely on the National Assembly’s choice, without public participation”.
He said the fact that parliament was deciding the prime minister’s fate without a fresh election means the MPs usurped the people’s authority to decide who should lead their government.
Justice Mosito also noted that the amendment trimmed the King’s power by removing the provision for the Prime minister to advise him to dissolve parliament and declare a fresh election.
Justice Van Der Westhuizen however disagreed and wrote the dissenting judgement.
Justice Chinhengo concurred.
Justice Van Der Westhuizen delicately explores both sides of the argument as he explains why he could have granted the appeal.
He concedes that stopping the prime minister from advising the King to dissolve parliament and calling an election after losing a no-confidence could be interpreted as posing a serious threat to democracy because it blocks the electorate from deciding who runs their government.
He notes that it could also be possible that the “amendment opens the door for already elected politicians to make deals with one another about the office of the Prime Minister and other positions, even to rotate the Prime Minister, without the participation of the electorate”.
Justice Van Der Westhuizen also doesn’t dispute that there could be a strong argument that there could be concerns that the amendment would reduce the King’s power.
He however strongly argues that while “constitutions should not easily be amendable, in the interest of stability and certainty on the highest level of law, too rigid limitation of Parliament’s power to amend may block necessary change”.
“Furthermore, it would be unwise and short-sighted for this Court to render a binding decision that Lesotho may never in the length of time consider changes to the role of the King and even aspects of or the continuation of the monarchy, by, for example, the amendment of section 1 or other provisions dealing with the King, for example to allow for a Queen,”
On the idea that the amendments circumvent the people’s authority to decide their leaders, the judge noted that because the MPs have been “democratically elected to represent voters” they “need not call elections to test whether each and every one of their decisions carry the approval of the people”.
He argues that the amendment “changes the immediate consequences of a motion of no confidence” but “it does not abolish or radically change it”.
“However troubling the above concerns about the Ninth Amendment may be, they do not rise to the level of being destructive of the constitutional democracy. It neither amounts to abolition rather than amendment of the Constitution, nor undermines the basic structure of the Constitution.”
“It is a long distance away from the examples of abolishing regular elections and making the President, King, or police chief the Chief Justice.”
He also questions the prudence and wisdom invalidating an amendment that has existed for three years.
Justice Van Der Westhuizen wonders “whether a constitutional amendment can be tested against the constitution itself, found to be constitutionally wanting and declared by a court of law to be unconstitutional and invalid”.
“If so, when? What if it seeks to amend or abolish the very constitutional provision in terms of which it is regarded as unconstitutional, or even the provision prescribing the procedure to be followed for amendment? This logical dilemma lies at the centre of this matter.”
On the principle of separation of power, the judge said “role and indeed duty of courts are to honour, interpret and apply the Constitution by which they are bound” and “to preserve and protect the democratic constitutional order, embodied in the Constitution.”
“It is not to decide on what is good, bad, preferable, or unwise for governance in Lesotho, in the eyes of the judges. Courts are neither to make binding decisions on policy matters, nor draft a perfect constitution for Lesotho.”
“For suspicions and misgivings about, or a lack of trust in politicians, other individuals or groups, there is no place in judging, regardless that these sentiments may be understandable, given past events.”
He warns that “evidence and arguments properly presented to the court are what a judicial decision should be based on”.
“Alarmist speculation about the possibly disastrous consequences of the amendment must be handled with care. However, a court would neglect its duty if it does not seriously consider the foreseeable consequences of the amendment.”
Justice Van Der Westhuizen also notes that the constitution has procedures for its amendment.
“Parliament can do so by following the prescribed procedure. Also given the nature of the amendment at stake here, as well as the unreasonable lapse of three years since the passing of the Ninth Amendment Act, this seems like a situation in which courts neither have to, nor should, interfere.”
“Parliament should look after itself. This is what is supposed to be happening right now – as we speak … and write.”
Staff Reporters
