Why 9th amendment was struck off

The Court of Appeal President, Justice Kananelo Mosito, and two other Justices Phillip Musonda and Petrus Damaseb, found that the amendment “undermines the basic structure of the Constitution and should be declared unconstitutional”.

Justices Moses Chinhengo and Johann van der Westhuizen dissented (see story on Westhuizen’s dissenting judgement).

Justice Mosito said he was concerned over the amendment’s impact on the democratic process and the role of the electorate in choosing their government.

“By excluding 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, the Amendment seriously undermines the principles of democracy enshrined in our Constitution,” Justice Mosito said.

He noted that the prevailing mood among the MPs at the time was that the motion to amend the constitution would stabilise parliament and save the country the expenditure for the now regular snap elections.

This was against the backdrop of three elections between 2012 and 2017.

The country went to snap elections in 2015 and 2017 because the Prime Minister advised early elections after losing parliament’s confidence.

Justice Mosito said even as we celebrate democracy, we must safeguard the Constitution’s sanctity by constitutional means.

“The Prime Minister’s advice to dissolve Parliament is not a whimsical exercise of power but a sacred duty enshrined in Section 83(4) to preserve democratic legitimacy,” he said.

“When a vote of no confidence looms, threatening to undermine the people’s mandate, the Prime Minister may counsel the King to dissolve Parliament per section 83(4)(b). This advice rings as a clarion call to return the question of governance to the ultimate sovereigns – the people of this kingdom.”

He said while parliament has the power to amend the constitution, the constitutional validity of such amendments can be challenged before the courts on the grounds of non-compliance with the prescribed procedure or if the amendment violates the constitution’s basic structure.

Such amendments, he said, are subject to judicial review, and “the court can strike down amendments that violate the basic structure or essential features of the Constitution”.

“If a proposed amendment is patently unconstitutional or violates the basic structure of our Constitution, it would be a grave injustice to allow it to take effect, even temporarily.”

Justice Mosito said the court upholds the sanctity of the constitution and prevents unconstitutional amendments “from eroding the foundation upon which our nation’s democratic principles and the rule of law rest”.

“It is our sacred duty to act as guardians of the Constitution, ensuring that its inviolable principles are not compromised by unconstitutional amendments.”

He said the full impact and implications of an amendment may not be evident until it has become a part of the constitutional fabric.

Only then, he said, can the court determine the validity of an amendment and assess its conformity with the constitution’s fundamental principles.

He said Lesotho’s Constitution does not explicitly mention a “basic structure” or “inviolable principles” exempt from amendment.

However, he said, drawing from the principles established in other Commonwealth jurisdictions, certain fundamental features of Lesotho’s constitution form part of its basic structure and cannot be abrogated or diminished through the amendment process.

He said the doctrine of parliamentary supremacy cannot be invoked to argue that the elected parliament has the sovereign power to amend the constitution as it deems fit, subject to the prescribed procedures.

“This is because, while Lesotho’s Parliament has significant legislative power, it does not have the same level of supremacy as the UK Parliament,” he said.

“The doctrine of parliamentary supremacy is superseded by constitutional supremacy. Parliament can amend the Constitution, but only by following the strict procedures laid out in the Constitution itself.”

He said the power to amend the constitution “cannot be used to deconstruct its foundational commitments to democracy, human rights, and the rule of law”.

“This judgment aims to safeguard that constitutional vision, ensuring that Lesotho’s democratic kingdom endures as a reality rather than a mere ritual.”

He declared that the ninth amendment to the constitution, without public participation, is constitutionally invalid.

Staff Reporter