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Activists go to court to stop reforms process

by Lesotho Times
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demand that it be restarted afresh

as it appears to be descending into a farce

Mohalenyane Phakela / Moorosi Tsiane

THE much-delayed process to pass constitutional, legal and security reforms, to foster long lasting stability in Lesotho, appears to be descending into a circus.
This as a media activist group and a little-known political party – with not a single seat in parliament – have petitioned the courts to stop an urgent sitting of the National Assembly on Monday meant to expediate the reforms process.

The current 11th parliament had been recalled from its winter recess for an urgent sitting on Monday – 14 August 2023 – to deliberate on the reforms process and consider passing the 11th Amendment to the Constitution of Lesotho, colloquially dubbed the Omnibus Constitutional Bill, which encompasses most of the envisaged reforms.

But the process could be in limbo yet again after the Media Institute of Southern Africa (MISA) Lesotho Chapter, its chairperson Kananelo Boloetse and a little-known political party called Yearn for Economic Sustainability (YES), petitioned the Constitutional Court seeking an order to cancel parliament’s Monday sitting to consider the reforms. Instead, the three applicants want the whole reforms process started afresh.

They argue that the current 11th parliament cannot resuscitate and pass draft laws, most significantly the Omnibus Bill, which lapsed when the 10th parliament was dissolved on 14 July 2022 after the expiry of its tenure.

The Omnibus Bill and other draft laws which lapsed at the expiry of the last parliament now belong to the “graveyard” and cannot simply be brought to life and get passed by the new 11th parliament, they argue. The new parliament has an obligation to originate and pass its own laws, instead of revisiting “dead” Bills. The reforms process must thus be started anew.

The latest court bid ushers a new dimension in ongoing efforts to derail the reforms which have limped from one disaster to another over the years.  If the court action succeeds, it will mean probably more months or years of stalling a crucial process initiated by SADC way back in 2016 to help this strife prone Kingdom achieve lasting peace and stability.

The Omnibus Bill originally lapsed after the previous parliament failed to pass it before its dissolution on 14 July 2022.

Then Prime Minister, Moeketsi Majoro, then declared a state of emergency via a 16 August 2022 gazette to justify recalling parliament to pass the Omnibus Bill and complete the reforms process amid mounting pressure from SADC and international development partners for the conclusion of a project with noble aims.

The same Mr Boloetse, in conjunction with Law Society of Lesotho president, Lintle Tuke, had on 25 September 2022 successfully challenged the government’s decision to pass the Omnibus Bill through a parliament recalled via an illegal state of emergency.

Chief Justice Sakoane Sakoane found that King Letsie III had been misled into recalling a parliament, that had failed to do its work timeously, via the draconian option of a state of emergency.  The failure of a parliament to perform its duties in time could not justify a state of emergency, he ruled.  The Chief Justice concurred with Messrs Boloetse and Tuke that there hadn’t been any “emergency” in the country to justify a state of emergency declaration. Failure by a parliament to do its work before its dissolution could not warrant such a declaration.  Any unfinished work became the responsibility of the next parliament to be elected.

The decision immediately nullified the recalled 10th parliament’s 29 August 2022 approval of the Omnibus Bill.

Prime Minister Sam Matekane’s Revolution for Prosperity (RFP) had promised to prioritise the speedy completion of the reforms process if it won the October 2022 elections. But after recording a landslide in those elections and forming government, the bickering among the political elites began.

The opposition for instance accused Mr Matekane of prioritizing passing laws that entrenched his power such as the National Assembly Electoral Amendment Bill, 2022, which was passed in May 2023 and forbids floor crossing for the first three years of the election of a new parliament without the calling of a byelection.  The Bill is yet to get royal assent to become law though.

Parliament had passed other laws on 8 December 2022, some of which international development partners, particularly the US, had demanded before releasing much needed aid.  They included the Harmonisation of the Rights of Customary Widows with Legal Capacity of Married Persons Bill, 2022, and the Counter Domestic Violence Bill,2022, meant to protect women’s rights.

The opposition and the RFP led coalition had nevertheless bickered over the Omnibus Bill with the former wanting it to be resuscitated and passed as it was when the last 10th parliament was dissolved. Mr Matekane’s government insisted on segmenting it, according to the majorities required to pass its various provisions. Some of these provisions require a simple parliamentary majority to pass, others need a two thirds majority while some clauses must be put before a national referendum for approval.

Some of the clauses to be amended that require higher majorities include the circumstances under which parliament can be dissolved or prorogued, the repeal or amendment of constitutional provisions, the limitation of a prime minister’s terms of office to a maximum ten years, the circumstances under which a prime minister may be impeached, among others. The Omnibus Bill also seeks to strengthen institutions of State like the Office of the Director of Public Prosecutions, the Independent Electoral Commission (IEC), the Office of Auditor- General, among others.  It seeks to depoliticise appointments to key institutions of governance. It also abolishes the Court of Appeal to replace it with a Supreme Court as the highest court, among other provisions.

The Matekane government and the opposition had differed profusely over how to proceed with the Omnibus Bill culminating in a series of meetings. Progress appeared to have been made and the recall of parliament from its winter recess to deal with the Omnibus Bill and complete the reforms process had been anticipated.

But MISA, Mr Boloetse and the YES party’s latest court application is yet another spanner in the works.

Mr Boloetse – on behalf of his co-applicants – argues that the new 11th parliament has no business going to the “graveyard” to resurrect Bills of the last parliament that had already “died”.  The new parliament must draw its own Bills. That means the Omnibus Bill is dead in the water and cannot simply be resurrected as it was before it lapsed. A new constitutional amendment Bill must be drawn from scratch. In other words, the reforms process must be restarted afresh.  The leader of YES party, Molefi Ntsonyane, signed an affidavit supporting Mr Boloetse’s averments. The YES party was formed just before the October 2022 elections and failed to win even a single proportional representation (PR) seat, the usual backdoor route for smaller parties to get into parliament.

Mr Boloetse, MISA and the YES party want an interim interdict  to stop the envisaged Monday sitting of parliament pending the adjudication of  their main application to halt the whole reforms process and get it restarted anew.

Parliament had originally been recalled to meet on the 7th of August 2023 to deal with the reforms. But the circular for that recall was withdrawn by Speaker of Parliament, Tlohang Sekhamane, after Democratic Congress leader, Mathibeli Mokhothu, challenged its legitimacy.  Mr Mokhothu said the circular was wrong because it did not detail the agenda for which parliament had been recalled. It also did not comply with provisions of standing orders on how an adjourned parliament should be recalled, he argued.

Mr Sekhamane concurred with Mr Mokhothu and withdrew the initial circular before Clerk of the National Assembly, Advocate Fine Maema, issued a new one (Standing Order No. 202 of 2022) on the Speaker’s behalf recalling parliament for the urgent sitting on Monday 14 August 2023.

National Assembly Speaker, Tlohang Sekhamane, Senate President ‘Mamonaheng Mokitimi, Clerk of the National Assembly Advocate Fine Maema, Minister of Law, Justice and Parliamentary Affairs Justice Nthomeng Majara, the Senate, the National Assembly, His Majesty King Letsie III and Attorney-General Adv Rapelang Motsieloa King’s Counsel (KC) are cited as first to eighth respondents, respectively.

The application was yet to be allocated a judge, who will determine its urgency and the interim interdict sought, by the time of going to print last night.

In their court papers, Mr Boloetse and his co-applicants argue that parliamentarians cannot be allowed to pass laws which their predecessors failed to enact. They also take umbrage with some provisions of the Omnibus Bill which they say are a direct attack on the freedom of the media. They say the Bill attempts to restore criminal defamation which was outlawed by the Constitutional Court in 2018 after a challenge by Lesotho Times publisher, Basildon Peta, who had been charged under that law at the behest of former army commander Tlali Kamoli.  Because the Omnibus Bill does not originate from the current parliament, it was dead and cannot be restored, the applicants argue.

“I and/or applicants are unhappy with the 11th Amendment to the Constitution Bill 2022, since we were not heard, and parliament had not exercised the jurisdictional fact whether to involve us or not,” Mr Boloetse submits in his founding affidavit.

“It compromises freedom of expression and freedom of the press to the extent that it purports to reinstate criminal defamation abolished by this court. Therefore, it is only fair that the genesis of the Bill be from scratch to permit fair and meaningful public participation in order to safeguard the interests of the media.

“Furthermore, the procedure followed violates the constitutional procedure laid in section 78 (of the Constitution) which mandatorily dictates that the Bill will originate from the National Assembly, to the Senate, back to the National Assembly, then go for the King’s Royal Assent.

“The 11th Amendment to the Constitution Bill 2022 is non-existent before the eyes of the law and does not originate from the 2023 National Assembly as required by the Constitution, but from the dusts of the graveyard of the 10th parliament.”

The applicants further argue: “The effect of the dissolution of the 10th parliament was not to refrigerate and preserve the then pending businesses and Bills, but to permanently abort same, and they cannot subsequently be resurrected and thrown through the back window upon recalling of the 11th parliament on 14 August 2023.

“The 11th parliament cannot be permitted in law, to sit in vain and expend time and labour over nothing (dead Bill) at the expense of the public purse.”

Chief Justice Sakoane had on 25 September 2022, alongside Justices Tšeliso Monapathi and ‘Mafelile Ralebese, sitting as a Constitutional Court, outlawed the manner in which the Omnibus Bill had been passed via an illegal state of emergency. The Court of Appeal upheld their decision on 12 November 2022.

Mr Boloetse now argues the Constitutional Court judgement nullified all the Bills which had been pending before the 10th parliament before its dissolution.

Mr Boloetse quotes paragraphs 75 and 77 of Justice Sakoane’s judgement, which state: “A dissolution (of parliament) terminates all pending Bills. It does not preserve them in a legislative fridge to be opened if parliament is recalled. A recalled parliament does not have jurisdiction and authority to resurrect business killed and buried by its dissolution”.

Mr Boloetse therefore argues that the Bills which the 10th parliament failed to pass had “become corpses which a declaration (of recalling the 11th parliament) cannot resurrect into legislative business for the recalled parliament”.

“To the extent that the recall notice purports to authorise or direct parliament to resurrect and pass the Bills; it is ultra vires”.

Mr Boloetse and his co-applicants also seek: “A declarator that Circular No. 5 of 2023 and Standing Order No. 202 of 2022 purporting to reinstate, by motion or resolution, the Bills that were pending immediately before the dissolution of the past parliament, are null and void for violating mandatory law-making processes and procedures laid in section 78 of the Constitution”.

They further seek “A declarator that the dissolution of the 10th parliament on 14 July 2022 had the legal effect of disintegrating irretrievably (not preserving) all pending parliamentary businesses and Bills. Hence, the 11th parliament cannot constitutionally consider or resurrect all such Bills (including the 11th Amendment to the Constitution Bill 2022) and carry them over on 14 August 2023”.

They ask the court for “a mandamus (order) that the respondents be jointly and/or severally directed to start de novo (afresh) all the processes relating to enacting into laws all the resolved Bills in question.

“That the completed resurrection of the Tobacco and Alcoholic Products Levy Bill 2022 be declared null and void.”

Parliament had in March 2023 approved a 30-percent levy on tobacco products and 15-percent levy for alcoholic beverages in line with the Tobacco and Alcoholic Products Levy Bill 2022, which was originally mooted by the last parliament but lapsed after its dissolution. It is one of the Bills resurrected by the new parliament. Liquor and restaurant traders have been up in arms against that law, claiming it has crippled their operations.

Mr Boloetse and his co-applicants now argue the law should not have been passed by the new parliament after the previous parliament had failed to pass it.

Lesotho is supposed to present a progress report on the reforms process at the upcoming SADC heads of state and government summit in Luanda, Angola, later next week. It seems once again, Lesotho, will attend the summit empty handed to the possible annoyance of the regional body which initiated the reforms process way back in 2016 and has been eager to see them completed.



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