Moorosi Tsiane
THE national reforms process remains in limbo after activist and Media Institute of Southern Africa-Lesotho (MISA) chairperson, Kananelo Boloetse, on Monday escalated his bid to force parliament to start the whole process from scratch, to the Court of Appeal.
This move forced the National Assembly, which was set to proceed with the reforms process on Monday afternoon, to postpone its sitting indefinitely in order to allow the apex court to adjudicate Mr Boloetse’s appeal.
Mr Boloetse’s appeal follows the 25 August 2023 judgment of the Constitutional Court bench of Justices ‘Maseforo Mahase, Moroke Mokhesi and Polo Banyane, which dismissed his plea to bar parliament from proceeding with the 11th Amendment to the Constitution (Omnibus Bill).
Mr Boloetse had joined forces with MISA and political party Yearn for Economic Stability (YES) in the Constitutional Court challenge.
Mr Boloetse and his fellow applicants had argued on 18 August 2023 that the Omnibus Bill “died” together with the other draft laws which the 10th parliament failed to enact before its dissolution on 14 July 2022.
However, when reading the judgement last Friday on behalf of her other colleagues, Justice Banyane ruled that MISA and YES were not natural bodies and therefore lacked jurisdiction to claim rights to participate in the constitutional matters.
As a result of that ruling, Mr Boloetse has now petitioned the Court of Appeal on his own.
In his papers filed in the apex court on Monday, Mr Boloetse argues that the Constitutional Court misdirected itself by upholding that the National Assembly had jurisdiction to reinstate all the bills that lapsed upon the dissolution of its predecessor.
He further submits that the Constitutional Court should have held that section 70 of the Constitution confers legislative power to parliament; section 78 lays mandatory substantive law-making power procedure, while section 81 gives parliament rule-making power to regulate its law-making process, subject to the substantive law-making power provided in section78 of the Constitution.
“There is no substantive law provision in section 78 of the Constitution and/or anywhere in the Constitution permitting the reinstatement of bills that died upon dissolution of the parliament from the state they were immediately before the dissolution of parliament,” Mr Boloetse argues.
“For the first time, the substantive law power to reinstate dead laws from the state they were before they died upon dissolution of the previous parliament, appears in the National Assembly Rules, in this case, Standing Order 105B.
“The 11th Amendment to the Constitution is a 2022 Bill and relates to the dissolved 10th parliament. Standing Order 105B gives Parliament power to reinstate all Bills related to the dissolved parliament(s) from the stage they were immediately before the dissolution of the 10th parliament and any dissolved parliament. The Standing Order 105B was the result of the rule making power permitting the National Assembly to make its own Rules in terms of section 81 of the Constitution.
“Although section 81 of the Constitution permits both the National Assembly and Senate to make their own Rules governing their procedure via Standing Orders, there is no corresponding legislature to Standing Order 105B in the Senate.”
Mr Boloetse therefore argues that by allowing parliament to continue with the
amendment of the Bills to a stage where they were at by the dissolution of the of the 10th Parliament, the Senate power to partake in the mandatory law-making process is going to be violated.
“The court a quo erred and misdirected itself by having failed to make a ruling on the effect of the National Assembly power to unilaterally reinstate laws from the stage they were before dissolution of the 10th parliament. The court ought to have held that reinstatement is going to violate Senate power to partake in the mandatory law-making process.”
He further argues that for parliament to have substantive law-making power to reinstate dead and buried Bills, it must first amend section 78 of the Constitution to accommodate such power as done by New Zealand.
“Absent such powers in the constitution itself, that is section 78 of the Constitution, parliament has no power to reinstate laws contrary to Section 78 of the Constitution on substantive law-making procedure.”
Although Mr Boloetse has petitioned the Court of Appeal on his own, he still contends that Justices Mahase, Mokhesi and Banyane misdirected themselves in ruling that MISA and YES were “juristic persons and not natural bodies”.
“The Court a quo erred and misdirected itself by having held that Applicant and Applicants in the Court a quo have no right to participate directly in the law-making process. The court ought to have held that applicant (Boloetse) and applicants (MISA and YES) had right to participate directly in the law-making process per section 20 of the Constitution, but the parliament has power to exercise rational decision whether to involve or exclude them. That absent such rational exercise of power, applicants’ right to participate in the law-making process is violated,” he argued.
Meanwhile, Mr Boloetse’s appeal means the national reforms process may have to be suspended longer as the Court of Appeal will only sit for its second 2023 session in October, unless his lawyer, Advocate Fusi Sehapi, applies for, and is granted, a special sitting of the apex court.
