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Parly recall challenged

Mohalenyane Phakela

KING Letsie lll’s decision to recall parliament to pass the much-delayed reforms legislation has been challenged in court as “unjustifiable” and “unconstitutional”.

Journalist and activist, Kananelo Boloetse, has asked the Constitutional Court to nullify the recall arguing that there was no calamity nor disaster in Lesotho that warranted the declaration of a state of emergency used to justify the recall.

There was no disaster – natural or otherwise –  threatening citizens from enjoying their lives or threatening the general continuance of life in Lesotho.  As such, there was no basis to justify a state of emergency.

Instead, the emergency declaration was now being deployed to try and remedy a political failure by parliament to do its work and pass the much-delayed reforms legislation. That ought to have been foreseen by the government and remedied long back without resort to a state of emergency declaration, Mr Boloetse argues.

The Constitutional Court will sit today to hear and rule on the application filed on an urgent basis.

Mr Boloetse’s motives  in challenging a process meant to facilitate the passing of reforms geared towards fostering enduring peace and stability in the country are not clear.  Equally unclear are the sources backing him. He is a mere journalist of meagre resources with no financial wherewithal to mount such a seemingly expensive legal challenge.

But he makes a strong point that a state of emergency cannot be declared simply to appease or rectify political misdemeanours.

The Constitution envisaged an event of calamity or emergency for the declaration of  a state of emergency.

“It did not intend for fluid, unclear and opinionated patches of policy failures by the government (to warrant an emergency declaration),” Mr Boloetse argues in his founding affidavit.

“The (situation warranting a) state of emergency must be present, actual and imminent.” Failure by parliament to pass bills cannot be viewed as such and cannot therefore give rise to a state of emergency declaration.

There is hardly anything cited as an emergency threatening organised life in Lesotho to warrant a declaration of emergency and the recall of parliament. Failure by politicians to do their work and pass legislation cannot warrant a state of emergency to recall parliament, he argues.

Prime Minister Moeketsi 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 111 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 Tuesday 22 August to Tuesday 29 August 2022  to pass the bills giving effect to some of the constitutional reforms recommended by the Southern African Development Community (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 and prodded Lesotho to finalise the reforms before the regional body’s summit in Kinshasa , the Democratic Republic of the Congo, last week. Parliament had then been recalled to ensure the reforms bills are passed.

But Mr Boloetse insists that is not  good enough. King Letsie lll had acted way beyond the scope of his powers in recalling parliament, the journalist argued.

The Constitutional bench of Chief Justice Sakoane Sakoane and Justices Tṥeliso Monapathi and ‘Maliepollo Makhetha will now have to rule on whether or not the journalist’s arguments have any merit.

If they find in his favour, parliament would then have to halt its sittings and the reforms process would go into limbo again.

At its Kinshasa summit, SADC continued with its exhortations on Lesotho to finally complete the reforms and foster stability in the country.  Chief Justice Sakoane gave the parties a deadline of 2.30pm today to have filed all their papers for the hearing to begin.

Prime Minister Moeketsi Majoro, the Council of State, Speaker of the National Assembly Sephiri Motanyane, President of The Senate ‘Mamonaheng Mokitimi, the National Assembly, the Senate and Attorney General Rapelang Motsieloa are first to eighth respondents respectively in the application.

In recalling Parliament, King Letsie had described the need to pass the Eleventh Amendment to the Constitution Bill, 2022 and the National Assembly Electoral (Amendment) Bill as a public emergency.

“Owing to this urgent need, the parliament shall convene from 24 to 29 August 2022, thereafter, shall stand dissolved,” His Majesty declared.

But Mr Boloetse begs to differ. His Majesty and his advisors, the Council of State, had acted beyond their powers, he insists.

“I am reliably informed and hold the same to be true that the Council of State acted ultra-vires ( beyond its legal powers)….. in advising the King to recall parliament for the purpose of passing this Bill (sic) under the pretext of a State of Emergency. This is compounded on the fact that there is no such state of emergency as envisaged by the Constitution of Lesotho Section 84(2).

“The King has also acted ultra- vires by violating the principle of separation of powers in that the notice that recalls parliament instructs parliament to pass the legislative instruments in issue. The net effect of this is that parliament has been recalled to effect the mandate of the King in violation of separation of powers enshrined in the constitution of Lesotho,” adds Mr Boloetse in his founding affidavit.

He argues that the directive of the King for parliament to pass the Bills into law was never envisaged in the law. Legislators must debate and pass laws after thorough reflection on these.

He says the King does not have the power to issue directives instructing  parliament on what to do.

“The directive to parliament regarding the said bills is a violation of separation of powers and an act of illegality in so far as the powers of the King are prescribed in the Constitution.”

Mr Boloetse  argues that the country is not under any form of danger to warrant a state of emergency.

“…..The declaration of emergency is expansive, lacks sufficient particularity, vague and opinionated and therefore subject to abuse and inconsistent with section 23(1) of the Constitution. The state of emergency is essentially an instalment of a hybrid legal order that allows the executive extraordinary powers to act beyond normal laws and rules governing society. The declaration of one must be attended by sufficient detail and particularity.”

No such detail had been provided to warrant the declaration, Mr Boloetse insists.

He also argues that a state of emergency must be caused by exceptional circumstances which inhibits  the government from discharging its fiduciary duties.

There were no such exceptional circumstances nor any imminent danger to Lesotho to justify the declaration and the recall of Parliament.

Instead,  the country was being mismanaged. Mismanagement could not be allowed to result in a declaration of emergency and  the recall of parliament.

“….It can hardly be true that a state of political stagnation, mismanagement, lack of proper governance constitute a state of emergency within the confines of our Constitution. To argue otherwise would be to justify a state of emergency that would evidently be a problem….,” Mr Boloetse argues, adding there was hardly anything surprising about the Lesotho political situation  warranting the declaration of the state of emergency.

In fact, the declaration was being justified by speculation of some instability that could occur in the future if the reform were not passed.

“Preventative emergencies are not envisaged within the Constitution. Exceptional situations cannot merely be envisaged to occur in the future. Emergencies must be present or at least imminent. There is no threat to the continuance of life of the citizens of Lesotho.

“Bills have been beaten to time by parliaments in Lesotho and elsewhere. It is not a novel situation that will stall the whole of Lesotho for a bill not to pass. Constitutional powers are being used to remedy a political failure that should have been foreseen by the government, ” argues Mr Boloetse while urging the  Constitutional Court to nullify the recall of parliament and to set aside the state of emergency.