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Fresh lawsuit seeks to nullify reforms bill

Mohalenyane Phakela

A FRESH lawsuit has been filed seeking nullification of the passing of the Omnibus Bill by parliament.

This time, it is the Media Institute of Southern Africa–Lesotho (MISA), which has petitioned the Constitutional Court to nullify the recent sitting of parliament. The journalists’ body also wants the court to set aside the enactment of the Omnibus Bill gazetted by His Majesty the King this week.

The Omnibus Bill was passed by parliament during its special sitting on Monday evening.

The 22 to 29 August 2022 sitting was necessitated by the state of emergency declared by His Majesty, King Letsie III, on the advice of Prime Minister Moeketsi Majoro.

MISA argues that the declaration of a state of emergency violated constitutional norms.

It now wants any business conducted by the recalled 10th parliament pursuant to Legal Notice No. 79 of 2022 (Declaration of State of Emergency, 2022) and Legal Notice No. 82 of 2022 (Recall of the Tenth Parliament Notice, 2022) to be nullified.

This means that the Omnibus Bill should be reversed to its previous status of not being a law before the National Assembly and the Senate convened sitting to finalise it.

MISA has joined forces with its chairperson, Nkoale Oetsi and lawyer, Lintle Tuke, who is also the deputy president of the Law Society of Lesotho in filing the application.

Prime Minister Moeketsi Majoro, the Office of the King, the Council of State, the National Assembly, the Senate and Attorney General Rapelang Motsieloa are first to sixth respondents respectively in the application.

MISA argues that the state of emergency and the recall of the 10th parliament are self-created and unconstitutional.

The Southern African Development Community (SADC) decisions or recommendations could not usurp the powers of the Constitution, MISA argues.

The applicants say it is unconstitutional for the Prime Minister to cite parliament’s failure to pass the reforms bill as a reason of declaring the state of emergency.

It is also wrong for the prime minister to refer to past incidents of instability dating back to 1960 as reasons for declaring a state of emergency in 2022.

“It is clear therefore, that the Prime Minister was drowning and clutching at every straw as a justification for calling the state of emergency,” MISA says.

“He was acting under the pressure of SADC to pass certain laws which Lesotho intentionally and/or negligently failed to pass.

“This court had already stated that SADC mandates cannot go against the constitution of this country. For completeness, a state of emergency can be caused by war, invasion, general insurrection, disorder which cannot be remedied by deploying law enforcement agencies, or local criminal laws.  Emergency can also be said to exist if there are natural disasters.”

Prime Minister attempted to concoct the state of emergency on the basis of long passed floods and breaking of bridges, but subsequently resiled from that route as it proved too obvious to be unconvincing and untrue, MISA says.

Consequently, all the reasons stated in the State of Emergency Gazette are untrue and do not justify the state of emergency.

The only true ground is that parliament intentionally and/or negligently failed to discharge its constitutional duty of passing the laws, MISA says.

In any event, the applicants say, the existing criminal laws were adequate to thwart any alleged threat to the nation and disorder.

“Above all, the laws or bills subject matter are not criminal laws and have nothing to do to remedy the alleged killings and/or the threat to the life of the nation. Therefore, the declaration of State of Emergency and the resultant recall of parliament are null and void.”

Dr Majoro had on 16 August 2022 gazetted a notice declaring a state of emergency in Lesotho. A state of emergency was the only tool available for the prime minister to get King Letsie III to recall the 10th parliament after its dissolution at midnight on 13 July 2022, after completing 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 had 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 the SADC way back in 2016 to help end perennial instability in Lesotho.

Deadlines set by SADC for the completion of the reforms have been routinely missed as politicians have bickered and sought to use the reforms to entrench their own narrow political interests.

But SADC had made it abundantly clear to Lesotho that the regional body had run out of patience. A delegation from South Africa – the mediator in Lesotho – had in fact met King Letsie III and prodded Lesotho to finalise the reforms before the regional body’s summit in Kinshasa, the Democratic Republic of the Congo, a fortnight ago. Parliament had then been recalled to ensure the reforms bills are passed.

King Letsie lll’s decision to recall parliament to pass the much-delayed reforms legislation was firstly challenged last week in court as “unjustifiable” and “unconstitutional” by journalist and activist, Kananelo Boloetse.

Advocate Tuke filed the two separate applications on behalf of Mr Boloetse and MISA.

In their applications, both parties ask the Constitutional Court to nullify the recall of parliament. They argue that there was neither calamity nor disaster in Lesotho that warranted the declaration of a state of emergency used to justify the reconvening.

Dr Majoro has opposed their applications on the grounds that the matter should be left to the exercising authority to determine what situation amounts to an emergency.

In his affidavit opposing Mr Boloetse and Adv Tuke’s applications, Dr Majoro says the declaration of a state of emergency is an executive decision that fits neatly within the sphere of the constitutional order and in this case, it was invoked to serve a legitimate governmental purpose.

“Therefore, the term should be understood to accommodate a wide range of crises such as the peculiar one which Lesotho faces at present and which is a product of many challenges that the country faced since independence in 1966.”

He further says that it is clearly disingenuous for the applicants to assert that the failure of the passing of the mentioned bills was a product of ‘political failure’ and hence falling outside the description of the ‘state of emergency’ as envisaged in the Constitution.

“I aver that all the jurisdictional factors explicitly articulated in Legal Notice No. 79 of 2022 are enough to fall within the description of a state of emergency which warrants the recall of parliament by His Majesty the King pursuant to Legal Notice No. 82 of 2022. Both legal instruments serve the legitimate governmental purpose and pass the constitutional muster. What the applicants are seeking to do is to ask this court to engage in an undue interference by the judicial arm of government. This is one classic case where the court must avoid engaging in judicial overreach. The factors which animated the two legal instruments are not falling within the scope of decisions executive decisions which are reviewable by a court of law absent illegality.”

Dr Majoro says it is incumbent upon him as head of government to act as he did in the best interests of Lesotho.

Although the declaration of the state of emergency amounts to a lawful suspension of the legal order, it is necessary that it be adopted and it is in line with the ethos of the Constitution.

“The legal instruments are without blemish,” he argues.

Mr Boloetse and Adv Tuke’s petitions were consolidated and are pending before the panel of Chief Justice Sakoane, Justices Tṥeliso Monapathi and ‘Maliepollo Makhetha. They are expected to sit tomorrow.

The MISA application is yet to be allocated.