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Death knell for reforms

…as apex court upholds ConCourt decision to nullify constitutional amendments…

Mohalenyane Phakela

THE Court of Appeal has upheld last week’s Constitutional Court’s judgement nullifying the constitutional amendments recently passed by the recalled parliament and gazetted into law by His Majesty, King Letsie III.

The apex court also upheld the Constitutional Court’s decision to nullify all other laws which were gazetted into law after their approval by the recalled parliament.

The five-member apex court bench comprising of the court’s president, Kananelo Mosito, Justices Phillip Musonda from Zambia, Petrus Damaseb (Namibia), Moses Chinhengo (Zimbabwe) and Johann Van Der Westhuizen (South Africa) held a virtual sitting this week following a government appeal against the Constitutional Court’s decision.

Delivering its verdict on Monday, the apex court said the government had “failed to make out a case and therefore the appeal is dismissed”. It said the reasons for its decision would be issued on 12 November 2022.

The government had gone to the appeal court to challenge last week’s Constitutional Court judgement issued after a consolidated application by lawyer, Lintle Tuke, and journalist-cum-activist, Kananelo Boloetse.

Adv Tuke and Mr Boloetse had initially filed separate applications arguing that there was no calamity or disaster in Lesotho that warranted the declaration of a state of emergency which paved the way for the recall of parliament to pass the constitutional amendments.

In any event, a parliament recalled to deal with an emergency was only limited to taking measures to deal with the emergency. Approving constitutional amendments was not part of its responsibilities. It had no powers to transact any other business including approving the constitutional amendments, Adv Tuke and Mr Boloetse had argued.

Hence the constitutional amendments that were subsequently gazetted into law by His Majesty were illegal and of no force, they had argued.

Prime Minister Moeketsi Majoro had on 16 August 2022 gazetted a notice declaring a state of emergency in Lesotho as the only tool available for him to get King Letsie III to recall the 10th parliament after its dissolution at midnight on 13 July 2022, after it had completed its five-year tenure. This would then enable it to pass the much-delayed reform bills ahead of the 7 October 2022 general elections.

The King subsequently gazetted the recall of parliament from 22 to 29 August 2022 to pass the bills giving effect to some of the constitutional reforms recommended by SADC in 2016 to help end perennial instability in Lesotho.

The recalled parliament approved the constitutional amendments on 29 August. This paved the way for the King to gazette the new act on 31 August. It is titled Tenth Amendment to the Constitution Act, 2022.

Reading the judgement on behalf of the Constitutional Court bench last week, Chief Justice Sakoane Sakoane said they had found that His Majesty had been “ill-advised” by the Council of State to recall parliament to approve the constitutional amendments and other acts.

The chief justice said there was no danger which had necessitated the recall of parliament under the guise of dealing with an emergency. What had simply happened was that parliament had delayed approving the constitutional amendments until its term expired. This did not create an emergency to warrant its recall. The task of resuscitating and approving the amendments as well as enacting other laws now fell with the next parliament to be inaugurated after next month’s elections, the top judge said.

The verdict did not go down well with Prime Minister Moeketsi Majoro and Attorney General Rapelang Motsieloa who immediately appealed to the Court of Appeal.

Reading out the verdict of the appeal court this week, Justice Mosito said, “We have considered this appeal and we are of the view that there are no reasons to alter the order of the court a quo (Constitutional Court). Therefore, the appeal is dismissed with costs and our reasons will follow on 12 November 2022”.

Before that, Dr Majoro and Advocate Motsieloa’s lawyer, Attorney Monaheng Rasekoai, had to contend with a barrage of questions while arguing his clients’ case.

Among other things, Mr Rasekoai had argued that Adv Tuke and Mr Boloetse had no legal standing to query or challenge the government decision to recall parliament and pass the constitutional amendments and other laws.

He argued that the only way Adv Tuke could only have challenged the recall of parliament and its subsequent approval of the constitutional amendments and other laws was by filing an application through the Law Society of Lesotho, not in his personal capacity as he had done. Therefore, the Constitutional Court had erred by giving Adv Tuke and Mr Boloetse a hearing, Mr Rasekoai argued.

“Our application speaks to the separation of powers. The court a quo went overboard in nullifying the legislation which was done by another arm of government.

“The respondents (Tuke and Boloetse) sought a declarator saying they have a standing. Mr Boloetse is making a bare unsubstantial averment that his right has been violated. Both respondents do not say how the state of emergency infringed their rights.

“Even if the declaration of the state of emergency was not made on a sound basis, the recall of parliament can stand on its own,” Mr Rasekoai had argued.

He was immediately subjected to intense questioning by the appeal court judges.

Justice Chinhengo was the first to have a go at him.

“What is parliament’s first task after the recalling of parliament under the state of emergency? Was the state of emergency ever discussed by parliament? Is parliament allowed to transact other business under the state of emergency,” the judge asked.

Next up was Justice Damaseb who asked, “Who could have challenged this action by the government if you say the respondents had no locus standi (legal standing)?”

“Had parliament refused to pass those laws, would we have a permanent emergency because of parliament’s failure to do its work on time? Wouldn’t we be setting a terrible precedent if we allowed this to happen (the recall of parliament to pass the constitutional amendments under the guise of dealing with an emergency),” Dr Mosito asked.

“Whose fault is it that after all these years parliament tends to resort to a state of emergency (to pass constitutional amendments)? What precedent will it set for the future if whenever there are political problems, there would be a declaration of an emergency,” Justice Westhuizen asked.

In reply, Mr Rasekoai said the Law Society was the only institution which had the authority to challenge the government decision to recall parliament.

Adv Sello Tšabeha, who represented Adv Tuke and Mr Boloetse, counter-argued that his clients had the legal standing to file the application and participate in governance issues in terms of section 20 of the Constitution which speaks to citizens’ rights.

“My learned friend (Rasekoai) did not point to any misdirection which he says the court a quo did. In the absence of a clear misdirection, this case cannot succeed.

“The applicants have an established locus standi based on the Bill of Rights. The next parliament can still transact the reforms. It cannot be an emergency when the prime minister himself says the nation’s problems date back to the 1960s. There is no eminent threat to life that necessitated the state of emergency. Even if we were to wait for six months to pass the bills, the day-to-day life of the nation would not be impossible. The emergency was declared irrationally and contrary to the enabling act. The applicants (Majoro and Motsieloa) have failed to make out a case,” Adv Tšabeha argued.

After hearing the arguments from both sides, Justice Mosito and his team adjourned at about 7pm. The court reconvened about 30 minutes later and dismissed Dr Majoro and Adv Motsieloa’s appeal.

The government has since conceded defeat.

Addressing the media on Tuesday, Communications, Science and Technology Minister, Samuel Rapapa, said the government would uphold the rule of law and discard all the laws passed by the recalled parliament.

“The High Court (sitting as the Constitutional Court) had ruled that parliament was unlawfully recalled and this was affirmed by the Court of Appeal yesterday (Monday). This means government has lost the case.

“The government of Lesotho obeys the decisions of the courts and therefore it will adhere to the order of the court. Those (nullified) laws will not be effected. It will be up to the 11th parliament to either pass or discard the laws when it is inaugurated (after next month’s elections), Mr Rapapa said.