AS I write this opinion, the parliamentary opposition parties lawyers will probably have approached the High Court or Constitutional Court to seek a declaratory order, or something approximating that, regarding the propriety of His Majesty the King acceding to the prime minister’s advice to dissolve government by-passing the Council of State following last week’s vote of no confidence. It is only tautological to state here that such a vote or resolution as the constitution says puts paid to the prime minister’s tenure, subject only to his resignation or advice of parliament’s dissolution which might be considered discretionarily by His Majesty on the advice of the Council of State.
Much has been made in previous weeks of the fact that Sections 83(4)(a) on the prime minister recommending such dissolution to the King, is subject to the King’s consideration of whether government can be carried out without dissolution and whether it would be in Lesotho’s interests – however defined; whereas sub-subsection (b) refers only to dissolution in the occasion that after the no-confidence resolution the prime minister does not approach the King at all, within three days.
The constitution at 83(4)(c) also says the no-confidence motion shall not be moved if it doesn’t include the name of a person it recommended for alternative prime minister in case it was carried; while at 87(5)(a) it states that the King shall remove the prime minister if s/he doesn’t move to approach him after the no-confidence resolution; and section 87(8) repeats the conditional validity of such a motion on the naming of a replacement prime minister.
That there can be no change of government in the parliament without sourcing an explicit mandate for the new rulers through a popular poll in national general elections, which has been widely canvassed by many in government and emergent opposition ranks, is therefore neither here nor there in the mirror of these clauses; not to mention that we have had at least two precedents supporting such a “parliamentary coup” as others have named them – and these benefitted and were executed by the chief exponents of this resistance. It happened in 1997 with the Lesotho Congress for Democracy and in the 2012 Democratic Congress transitions. The motion clauses were not even invoked nor exploited back then. In short, the constitution at various places envisages a smooth change of government in parliament.
It would seem to me that as soon as the prime minister smelt the motion in the air, which was loudly announced, and which he admitted he was going to lose as far back as December 2016, he still had discretion to head it off by going for snap elections, which the prime ministers had done in preceding three elections, two of which were by his own hand. Having failed that, he delivered his fate to the mercy of the Council of State which the Section83 (4) prescribes shall advise the King; much as he said very early that he was going to by-pass it.
His charges later started saying only sub-sub-section (b) thereof was relevant, because it contained both reference to confidence motion, and didn’t contain the King’s discretion – but as often observed by even minimally discerning, this applies only where the prime minister is silent after the motion. The preceding sub-sub-section (a) of course refers to all the prime minister’s recommendations of dissolution, without restricting it to the motion, but might not be said to exclude recommendation after dissolution.
There are those who have sought to distinguish between “recommend” in (a) and “advice” elsewhere, contending the former was subject to the monarch’s discretion while the latter was binding. Yet all the sections say the King shall only answer the prime minister on the advice of the Council. The recently circulated expert opinion of the Attorney-General Tšokolo Makhethe supporting the prime minister or government to the same effect of his earlier pronouncements can only be a self-fulling prophecy – singing to the emperor the chants of his own composition.
It has since become common knowledge in Maseru that the King granted dissolution of parliament for the benefit of new elections without advice of the Council of State, and that this was communicated to at least one member of the Council as avoidance of constitutional crises, by the King’s Senior Private Secretary who said the King saw no need to convene the Council for this purpose. The propriety of the same might yet be subject of judicial intervention for lack of better words – but it is fascinating that the prime minister could place himself in an invidious position where he might be seen as “harnessing” the palace to stage a technical coup, and give himself extra, irregular quarter-year in State House when he could easily have done the same through a voluntary early election. Why would he have to chagrin, and ignite anger of, others instead of effortlessly arriving at the same end? Why incur a defeat to gain that trophy? It seems a very warped political psyche which has cost us years of progress across the great political divide.