By Sofonea Shale
THE signing of the Maseru Facilitation Declaration (MFD) by the leadership of parties holding the power configuration in Parliament has not only made it public that the political leadership in Lesotho willingly and freely accepted the Southern African Development Community (SADC) early election prescription for the former’s chronic political disease misdiagnosed as acute but also raised the question on the supremacy of the constitution. Some people argue that MFD does not have constitutional legitimacy to take Lesotho to the early elections but the constitution does.
Others believe SADC, as an intergovernmental organisation, has a louder voice on national matters than the laws of a sovereign member state. Though these viewpoints are important, this article is more interested in the intentions behind the said positions.
The SADC Treaty indicates in Article 3 that it is an international organisation which shall have legal capacity as is necessary to operate for the furtherance of its functions. Section 1 of the Lesotho constitution, on the other hand, provides that Lesotho shall be a sovereign and democratic Kingdom.
In fact the SADC Treaty in Article 4(a) confirms that the organisation shall be guided by, among other principles, the respect for the sovereignty of every member state.
However, stands SADC accused of going overboard and misdirecting itself through the MFD in declaring that elections shall be held towards the end of February 2015. By so doing, SADC undermined section 83 (2) of the Lesotho Constitution which provides that Parliament shall continue for five years. In terms of the MFD, parliament shall be dissolved in December in preparation for elections.
This contradicts the Lesotho constitution which provides for the tenure of parliament and the conditions under which it can change. By providing that the business of Parliament shall, between 17 October 2014 and its dissolution, be limited to the election-related reforms and budget, the MFD is seen as unconstitutionally limiting the powers of Parliament.
In this way, Parliament is effectively dissolved by SADC with the blessing of the political leadership in direct contradiction with the provisions of the Lesotho Constitution. The significantly bigger part of these facts and arguments raised is true.
The net effect of the MFD is the creation of a new political and constitutional reality that may be helpful to take Lesotho out of. The underlying belief is that the MFD serves to avoid the exercise of parliamentary powers in removing Prime Minister Thomas Thabane as contained in part three of the Lesotho Constitution. Perhaps this interesting debate can be further provoked to expose the intention behind this otherwise patriotic-sentimental submission. In this line of thinking, it is expected that a motion of no-confidence would be moved in parliament as soon as it opens. This declaration is a political agreement whose implementation shall subject itself to the constitution, it is not necessarily against the consitution.
First and foremost, this argument is mooted by the people whose leadership has appended their signatures to MFD which came as a result of political dialogue. It may not be that they want to undermine or even embarrass their leadership but achieve certain goals which the current early-election project does not accommodate.
By proposing a motion of no-confidence, Members of Parliament would be seeking the freedom that has been curtailed by MFD to remove the premier. The motion of no-confidence would need endorsement of the chair of the business committee who is the leader of the house and whose party seems, for all intends and purposes, better off with early elections which come not as a result of dissolution following motion of no confidence but one which is collectively agreed.
Will the motion that will change this direction even pass the stage of business committee? If successful, the motion would not only have disrupted the road map in the MFD but also shorten the life of parliament and dashed all the remaining hope for the reforms.
If the prime minister loses on this motion, he will be left with two constitutional options; to resign or advise the King to dissolve Parliament.
Dr Thabane would most certainly use the second option in which case Parliament will be dissolved immediately and leaving three months for elections and no longer four months as contemplated by the MFD.
Followed to its logical conclusion, it is clear that the change of guard in a manner that Lesotho can for go elections with a different premier may not be possible. Here it is a dicey situation because opposition parties with the support have an opportunity to use their parliamentary majority to constitutionally change the prime minister but equally constitutional is the option of the deposed premier to take the dissolution route. Reading this situation, political opportunism that may be used will be effectively counteracted. Using parliament and its original and constitutional powers to undermine or frustrate MFD would not deliver the expected results.
If parliamentarians want to undo MFD, it may not be through an antagonistic and confrontational manner but through a well thought out strategic approach. First and foremost, it may need to be a reassurance to the seating prime minister that Parliament will only concentrate on reforms and not the change of guard.
The second most important issue would be an effort to repair the Dr Thabane and Deputy Prime Minister Mothetjoa Metsing’s working relations to a minimum threshold that they could handle governance as a collective.
Then the first among the reforms would be to ensure that Parliament is enabled to practically remove the premier and then other reforms that are need for the effective coalition governance. This approach would not only systematically render the MFD ineffective and reinstate MPs their legitimately expected full five year term, but also give Basotho a chance to look at the reforms holistically and broadly.
So, the argument is not only whether it is the constitution of Lesotho or MFD that is supreme but also about the intentions behind different viewpoints. Trying to use parliamentary processes to torpedo MFD may not bring the desired fruits. However, there is an alternative but it would seem that it is too costly as it demands not only trade-offs but some effort too.
