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Prof Mafa Sejanamane
A WEEK ago, three leaders of the political parties represented in parliament, returned from exile and were joined by the leader of the Alliance of Democrats (AD) and thousands of supporters in Maseru. This was only the beginning of the political drama that awaits the country in the next few weeks. All four leaders, Thomas Thabane (ABC), Thesele ‘Maseribane (BNP), Keketso Rantšo (RCL) and Monyane Moleleki (AD), were unanimous in calling for the ouster of Pakalitha Mosisili from the premiership of Lesotho when Parliament resumes. For understandable reasons, they cajoled their supporters to stand with them in the gigantic struggle they were about to engage in when Parliament reopens on Friday. They all acknowledged that Dr Mosisili was a hard nut to crack but that he is at his most vulnerable in his 16 years as Lesotho prime minister.
Dr Mosisili, on the other hand, was also rallying his supporters in the Leribe district to be part of the resistance against any attempt to oust him. In contrasting styles, both Dr Mosisili and the opposition were actively mobilising against each other. While the opposition was talking about the vote of no confidence they would lodge in Parliament, Dr Mosisili was in a threatening mood, arguing that he would not hand over power to anybody.
On the contrary, he would opt for an election. He went further to say that nobody could push him out of office. The issue which therefore is central to the struggle in the coming days is whether there will be a constitutional resolution or whether a coup is in the making.
Since the arrival of the opposition political leaders from exile and their massive welcome rally on 12 February 2017 and Dr Mosisili’s speech in Mphosong, I have seen little significance being put on the possibility or likelihood of a coup being attempted as a direct result of the two contrasting visions of the future of a constitutional government in Lesotho. On the contrary, there is premature euphoria on the part of the opposition parties focusing on counting numbers of the members of parliament (MPs) on their side as opposed to the declining fortunes of the government side. This is premature celebration syndrome!
On the government side, we have seen increasing threats that MPs will lose their benefits and also that their side will resist the pressure to hand over power. Signs of a fight to the end are plentiful for those who want to see them. Dr Mosisili is most likely going to dig in his heels in whatever eventuality. This is going to be a long haul rather than a sprint!
Constituting a govt in govt
In Lesotho, like in most parliamentary systems of government, the government is formed by the party or combination of parties which make the majority of members of parliament after an election. This is governed by Section 86 of the Constitution of Lesotho. It is ipso facto expected that the same situation should prevail throughout the life of Parliament. Exceptions however exist whereby a minority government can rule with the concurrence of the majority in parliament. That is normally a very weak government which can only undertake routine matters rather than major decisions. It cannot take place in Lesotho’s divided society where there is no consensus even on issues like rule of law.
When Dr Mosisili in 2015 managed to cobble a seven party coalition government, his numbers were 65 in a 120-seat parliament. When Mr Moleleki broke away from Dr Mosisili’s party with 14 constituency-based MPs, who are allowed to cross the floor in terms of Lesotho’s Constitution, Dr Mosisili’s government had been fatally injured. Indeed in a letter dated 16 February 2017, Mokhele Moletsane, AD secretary-general writing to the Speaker of the National Assembly, says as much that following the formation of a new political party its MPs wish to rise in their seats “….in the National Assembly and crossing the floor to join the opposition benches on Friday 24th February 2017.”
We are aware that there are at least nine other MPs who cannot officially cross the floor in terms of Lesotho’s constitution, but will most likely vote with the opposition. This fact has been acknowledged by Dr Mosisili in one of his recent speeches. The speaker, who is an MP from the ruling coalition, is stuck with them even if the DC were to complain, because she made a decision earlier in 2016 to reject the request by BNP to have two of its dissident MPs replaced. There can’t be one rule against BNP and another for DC.
There are however two other former ABC MPs who are forming a new political party who will certainly vote with the government. They have not yet been registered with the Independent Electoral Commission (IEC) as political parties which can contest elections. A split in the LCD whereby Selibe Mochoboroane, formerly its secretary-general has formed his party makes the situation more perilous for the government.
Mr Mochoboroane claims that he has the support of four other members from the LCD, who also cannot cross the floor for similar reasons to those from the DC. He has indicated, that he will move to the cross bench when the National Assembly resumes. If he were to abandon the government, Dr Mosisili’s numbers would be more perilous. Like the two deserters from the ABC, Mr Mochoboroane’s political party has not yet been registered by the IEC as eligible to contest elections. None of these improves Dr Mosisili’s chances of survival in Parliament.
What then can Dr Mosisili do to survive when Parliament resumes? Is he able to pull out any unexpected strategy against these odds? Hints of his strategy were spelled out clearly in Mphosong, in the Leribe district on 11 February 2017. In a similar manner Dr Mosisili’s political storm trooper, Bokang Ramatšella in an unbelievable vitriol, announced in a radio station which seems to have no ethical limits, that unleashing of violence is in the cards within weeks. Judging from previous statements by the same, we have seen that he normally speaks publicly what others are whispering about. He called out the editor of Lesotho Times, a local newspaper, a few months ago, and true to his words, the editor was ambushed and shot. He got serious injuries but did not die.
The makings of a coup
Explaining his dilemma/predicament in Parliament when it resumes next Friday, Dr Mosisili conceded that he has lost support in the National Assembly, but resorts to blaster and threats to his political foes. But significantly he spent time trying to assure them that he was not going to hand over power to anybody if he loses the vote of no confidence in Parliament. He outlines that there are three options open to him.
Ø Prime minister can resign and hand over power to the person who has been indicated in the motion of no confidence to have the support of the majority of members of Parliament. This is how the Lesotho Constitution spells this out. He quickly dismisses this option and vows that he would never hand over power to anybody;
Ø Prime minister can go to His Majesty to request the dissolution of Parliament. He points out that this is the option he likes. In his own words in Sesotho he argues “…..’Me leo lekhalo ke leo ke le ratang haholo, le nepahetse. ……..” He however goes further to argue that when the prime minister goes to see the King to dissolve Parliament, he goes alone and there is no role for the Council of State. As will be pointed out in the next section, this cannot be close to the truth. But that is not even the important issue. The next part of his speech provides a clear indication of the direction he wishes to take in the event of the vote of no confidence in Parliament succeeding.
Ø He goes further to outline the third option which he quickly dismisses since he will not follow if the vote of no confidence succeeds. This option is the one where after the vote of no confidence, the prime minister neither resigns no recommends to the King the dissolution of Parliament.
Three days after the successful motion in parliament, under those circumstances, the matter now is in the hands of the King to seek the advice of the Council of State. He goes further to argue that the only thing which the Council of State can advise the King on is the dissolution of Parliament and nothing else. Moreover, he argues, the King cannot push the prime minister from office even with the Council of State. There is no Section in the Constitution which allows the King to remove the prime minister from office.
Meaning that the Council of State can only advise the King to dissolve Parliament. What therefore does this mean if the constitution says otherwise?
Constitutional provisions versus Mosisili’s world
Dr Mosisili lives in an impunity bubble which makes him ignore the law when it does not suit his desires to continue in office even when circumstances no longer permit. Indeed, he was in a trance for two and half years when he was outmaneuvered out of power in 2012. He however, did not accept that situation and colluded with the military to destabilise that regime until it collapsed and he was able to cobble a coalition of seven political parties in 2015 to get back to power. It is thus understandable if he now vows to refuse to hand over power to anybody. But short of staging a coup, as I will argue, the law does not back his stance.
The Westminster form of government is guided by laws, conventions and practices. It is not a question of whether one wants to leave office, but what is provided in the law. Lesotho law which directly deals with the issues raised by Dr Mosisili is found largely in Sections 83 and 87. The law provides that the King may at any time prorogue or dissolve Parliament on the advice of the prime minister. Section 83(4) (a) spells out the conditions:
(a) If the prime minister recommends a dissolution and the King considers that the government of Lesotho can be carried on without a dissolution and that a dissolution would not be in the interests of Lesotho, he may, acting in accordance with the advice of the Council of State, refuse to dissolve Parliament;
The above Section of the Constitution makes it clear that Dr Mosisili’s bubble is a false one. The King is not bound to accept Dr Mosisili’s diktat on this matter. If the King considers that the government can be reconstituted with or without Mosisili he is constitutionally obliged to summon the Council of State to consider the matter. Once the Council of State has proffered an advice in writing, in terms of Section 95(7), it is mandatory for any person or body. Saying anything contrary to that is mischievous to say the least. The only other way of understanding that is that Dr Mosisili is giving notice of his intention to defy the law, should he lose the vote of no confidence.
More significantly, Dr Mosisili’s claim that there is no section in the law that authorises the King to remove the prime minister is also false. He actually starts off by using the term “push him out of office”. (Motlotlehi a ke ke a sutumetsa Tona Kholo hore a tsoe ka ofising, le ka lekhotla la naha) Section 87(5) which refutes this delusion is quoted in extenso hereunder:
The King may, acting in accordance with the advice of the Council of State, remove the Prime Minister from office-
(a) If a resolution of no confidence in the Government of Lesotho is passed by the National Assembly and the prime minister does not within three days thereafter, either resign from his office or advise a dissolution of Parliament;
Reading both Section 83 and 87 of the Constitution, it is clear that Dr Mosisili is bound to obey the King after a successful vote of no confidence and the advice of the Council of State. Anything else is outside the law. The only suggestion he may be making is that he is prepared to act unconstitutionally by force. There is precedence for these types of actions in recent Lesotho politics. In August 2014, former army commander Lt-Gen Tlali Kamoli abetted by Dr Mosisili and his allies refused to accede to his removal. The consequences of that are well known. It is that action which launched Lesotho into the ongoing security crisis.
Also in 2014, Mr Mochoboroane, then Communications minister, refused a lawful dismissal even after the official government gazette was published. All these were accomplished by the unlawful alliance of some of those in the Lesotho Defence Force. Mr Mochoboroane was untouchable.
These are the early signs of a plan to resist lawful authority by relying on both the military and the political storm troopers at Dr Mosisili’s disposal. It can however be asked whether an election is not a legitimate way to resolve the current crisis? Is anybody scared of going to elections now or in the immediate future? Elections as we all know can resolve political impasses but they are not a solution to a security crisis. Lesotho went into the 2015 elections within a security vacuum and that did not resolve anything. On the contrary, the elections propelled the country into an even worse situation. Security sector reforms clearly need to precede elections. In the next section, I indicate why Dr Mosisili wants elections now rather than at the end of the term of this Parliament.
Why Mosisili wants elections now?
In a strange way, Dr Mosisili whose party has been declining and has just split in two insists on holding elections. The real issue for him is not about elections and his prospects after such elections. It is largely three things which force him to try to force an election. First of all, he wants elections now when he is still in control of the unreformed state apparatus. It’s not only about the use of state resources for campaigning, though that is important too. He wants to have elections before any security sector reforms are undertaken. He is not oblivious to the fact that free and fair elections will not improve his situation. On the contrary, he wants to ensure that his iron grip on the military becomes his main electoral strategy. Those of his allies in the military, who were largely junior officers following him and Lt-Gen Kamoli, have now been promoted over and over within one year and are now in charge of all sectors of the military. The detained and exiled soldiers who were largely from the higher echelons of the army, would now find that their influence is no more. But Dr Mosisili has gone further to deploy another of his allies in the army to head the National Intelligence Service, thus blurring the operations of the military and civilian intelligence services.
The importance of this control of the politicised security services cannot be underestimated. The credibility of the 2015 elections lay largely on the decision by the then government of the day, supported by SADC, to ensure that the army was confined to the barracks on elections day. As we know, Dr Mosisili and his allies cried foul for such confinement. The reason was obvious, they wanted to use the military to intimidate and rig the elections. The unleashing of the state organised or orchestrated violence would most certainly lead to an election which would not reflect the view of the Basotho people. In recent times, we have seen an election where such state and state supported violence led to the victory of Robert Mugabe in Zimbabwe. Such elections would neither be free nor fair. They would not be credible. This is why Dr Mosisili wants elections now rather than later. This is also the reason why those who want free, fair and credible elections should not fall for his strategy of calling elections now.
The second main reason why Dr Mosisili wants to have elections now is to avoid or postpone the implementation of the SADC decisions arising from the Phumaphi Commission. The key issue in the Report was to remove Kamoli from office. The next priority was to have those of his allies in the military who have murdered Lt. General Mahao, Sub Inspector Ramahloko and several others; and those suspected of High Treason; bombing of some homes; and other serious crimes be suspended while investigations are completed in those crimes. The investigations, as observers have pointed out, are unlikely to end with the fingering of only foot soldiers, but are likely going to also point to those who conspired, abetted those crimes and those who hampered investigations. Arresting the puppet without also arresting the puppeteer would not have solved the questions of impunity amongst our political class in Lesotho.
Finally, Dr Mosisili is very anxious to complete the deployment of his allies in all strategic areas of the government so that he could rule from the grave, as the saying goes, when he is no longer in office. If there were elections in Lesotho, he would have an additional three months to deploy his allies and his relatives in strategic areas. If he loses power in an election, the new government would be disrupted for a long time before it is able to either remove the unworthy or find a ways of dealing with them. There is a method to what seems to be irrational actions by Dr Mosisili.
Could it also be that Dr Mosisili would not want to hand over power to either Dr Thabane or Mr Moleleki? Can his actions be attributed to the politics of hate?
Mr Moleleki in an interview with one local newspaper alluded to the hatred which drives Dr Mosisili. It could therefore also be possible that over and above the political and security fears he has, he is also fighting for the sake of spiting his enemies.
Dr Mosisili’s vehement denial that the King does not have an option but to dissolve Parliament if he advises him so has been shown to be false. The King can refuse to dissolve Parliament if such a move is not in the national interest. With the support of the Council of State, a new government can be formed at least four days after a vote of no confidence. In Germany that can be done within 48 hours.
Again, Dr Mosisili’s claim that the King cannot “push him” out of office is ridiculous. Kings don’t push people out of office; on the contrary they can remove them. Section 87 of the Constitution spells that out clearly. It is not a personal struggle between the King trekking Dr Mosisili out of office, it is the question of letting the law run its course if the King removes him. His denial of the existence of the law to that effect, gives a clear indication that he wants to defy any such order. Staying in power outside the law can only succeed if he uses State institutions to hold on to power by force. Thus the suggestion of a coup under planning is not farfetched.
It is for the above observations that Basotho and the friends of Lesotho should be on the lookout. Coups in Africa in the 21st century are possible but cannot be sustained. Be warned!