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King was ill-advised: ConCourt

By Thoboloko Ntšonyane

MASERU – The High Court sitting as the Constitutional Court (ConCourt) had given a relief to the petitioners who sought that it declares the State of Emergency and the recall of Parliament as unconstitutional.

The ConCourt has ruled in favour of the applicants.

The case was lodged by a prominent journalist and the activist, Kananelo Boloetse who was later joined by Advocate Lintle Tuke, Media Institute of Southern Africa (MISA) Lesotho Chapter and Nkoale Oetsi Tšoana.

The respondents were the Prime Minster, His Majesty the King, Council of State, National Assembly, Senate and the Attorney General being the first to sixth respondents respectively.

The applicants were represented by Advocate Tuke and the respondents were represented by Attorney Monaheng Rasekoai assisted by Advocate Christopher Lephuthing.

They had petitioned the ConCourt to nullify the business undertaken by the parliament during its recall by the King.

It would be recalled that last month, the 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).

The Parliament convened from August 24 to 29.

Reading the ruling yesterday afternoon, Chief Justice Sakoane Sakoane said His Majesty King Letsie III was ill-advised when recalling the parliament.

The ruling further said, the declaration of the State of Emergency by the Prime Minister did not warrant a situation which is dangerous to the country. The court said there was no demonstrable danger to the nation to occasion the declaration of the State of Emergency.

The ruling further pointed out that when the time of the tenth parliament lapses, the Minister of Law and Justice ought to have caused its extension tenure by a week to allow the passage of the outstanding work.

“Power to recall the Parliament is a condition and not the absolute power,” the Chief Justice said.

He further said, His Majesty has been “ill-advised” adding that the King does not err he is “made to err”.

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.

The Acts which fall away due to this judgment, that were passed and had not received  a royal assent, are the Tenth Amendment to the Constitution Act 2022; Millennium Challenge Account Lesotho Authority (Winding Up and Repeal) Act 2022; Specified Offices Defined Contribution Pension Fund (Amendment) Act 2022; Public Officers Defined Contribution Pension Fund (Amendment) Act 2022; Harmonisation of Rights of Customary Widows with Legal Capacity of Married Persona Act 2022 and Metolong Authority (Amendment) Act 2022.

Also, the Law Society of Lesotho and Advocate Tekane Maqakachane, who is its former’s President, had lodged a constitutional case praying that the court declares recall of parliament and the business transacted during its recall as unconstitutional is now mood and academic.

The ConCourt bench consisted of the Chief Justice (presiding), Judge Tšeliso Monapathi and Judge ‘Mafelile Ralebese.