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Gov’t says ConCourt overreached itself

By Thoboloko Ntšonyane


The government wants the Court of Appeal to reverse the ruling by the Constitutional Court (ConCourt) that nullified the recall of the parliament and the declaration of a state of emergency.

The lawyer representing the state, Attorney Monaheng Rasekoai submitted that the Constitutional Court (ConCourt) has acted outside the ambit of its perimeters in its recent ruling.

Attorney Rasekoai submitted this argument yesterday before the Court of Appeal referring to the ruling of the ConCourt that nullified the state of emergency and the declaration of the state of emergency.

In the appeal lodged by the government, the Attorney General and the Prime Minister are the first to the second applicant respectively.

The respondent is Kananelo Boloetse and Advocate Lintle Tuke

Attorney Rasekoai put before the apex court that the state of emergency had been called under unique circumstances.

He further said none of the respondents had complained that their rights had been “adversely” violated by the declaration of the state of emergency, adding that Boloetse made a “bare assertion” that his rights had been infringed on.

Attorney Rasekoai said if one is aggrieved, they should show how their rights have been trampled on and what “injury they suffered”.

He added that the Constitution does not give leeway for public litigation, which the Constitution Court sanctioned. Asked who could state a litigation, Attorney Rasekoai said it is the Law Society.

He added that the respondents fall short of meeting the requirements to file a lawsuit.

The lawyer representing the state said the matter raises serious legal questions.

The prominent journalist and activist, Boloetse and Advocate Tuke had last month petitioned the Constitutional Court to nullify the recall of the parliament and the declaration of the state of emergency, the prayers which the court granted.

Effectively the judgment declares the Eleventh Amendment to the Constitution Bill 2022 and National Assembly Electoral (Amendment) Act 2022 as unconstitutional and the work done during the recall of the parliament summarily collapses.

It would be recalled that last month, Prime Minister Dr. Moeketsi Majoro declared the State of Emergency, and subsequent to that, His Majesty King Letsie III recalled the parliament to pass the outstanding Eleventh Amendment to the Constitution Bill, 2022, and the National Assembly Electoral (Amendment) Act 2022 that the tenth parliament failed to pass when its tenure ended.

They argued that the State of Emergency is inconsistent with section 23(1) of the Constitution read with section 84(2) of the constitution.

They were later joined by the Media Institute of Southern Africa (MISA) Lesotho and Nkoale Oetsi Tšoana.

The government argues that the court had “erred and misdirected” itself by interrogating the merits that occasioned the state of emergency.

If further argues that it was wrong to conclude that the applicants (Boloetse and Advocate Tuke) had locus standi, a right to litigate.

The government also holds the view that the ConCourt failed to take into consideration the public interest dynamics against the “alleged breaches of the constitution”.

In its ruling, the ConCourt held that His Majesty has been “ill-advised” adding that the buck stops at the Council of State.

The ConCourt ruling further says: “It is, therefore, the failure to pass the Bills that triggered the advice by the Council of State for the declaration of a state of emergency and the recall of Parliament and not the problems that the Bills are meant to be a solution for. As it were, the medicine of the patient who has been sick since the 1960s failed to arrive on schedule or not at all when Parliament was dissolved.

“This is what pressed a panic button for the determination that the Kingdom faces a public emergency. The National Reforms Authority’s statutory duty is to mid-wife reforms and draft for Parliament to pass. The draft bills bind all political parties who (sic) have representation in the NRA. If it dawned on Parliament and the Executive that the NRA would not complete its mandate in the Tenth Parliament, the Minister [of Justice and Law] to extend the tenure until a week after the last Bill receives Royal Assent.

“The court is not told why this was not done and whether the two Bills are the last draft Bills the NRA presented.”

The case was before Judge Kananelo Mosito, the President of the Court of Appeal, Judge Moses Chinhengo, (Zimbabwe), Petrus Damaseb (Namibia) and Judge Johan Van Der Westhuizen (South Africa).

The state is represented by Attorney  Rasekoai and Advocate Christopher Lephuthing.

The respondents are represented by Advocate Tšabeha Tšabeha and Advocate Motebang Ramaili King’s Counsel (KC) argued for the respondents.