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ConCourt reserves judgement in prorogation case

by Lesotho Times

Mohalenyane Phakela

BELEAGUERED Prime Minister Thomas Thabane will find out on 17 April 2020 if his decision to prorogue parliament stands.

This after the Constitutional Court reserved judgement in the case in which his own All Basotho Convention (ABC) and other political parties are demanding the nullification of his decision to prorogue parliament from 20 March 2020 to 19 June 2020.

The applicants argued that Dr Thabane acted unlawfully by proroguing parliament without consulting them and obtaining permission from King Letsie III.

On Tuesday, a three-member Constitutional Court bench comprising of Justices Sakoane Sakoane (presiding), Moroke Mokhesi and Polo Banyane reserved judgement to Friday next week after hearing arguments from both the applicants and defendants’ lawyers.

Justice Sakoane said they needed to apply their minds after hearing “weighty submissions” from both sides.

Dr Thabane faces a fight to remain in power after his own ABC party joined hands with the BNP, the DC and several other individual ABC and BNP MPs and a senator to file the unprecedented constitutional challenge a fortnight ago.

All in all, there are 10 applicants in the case; namely the ABC, the BNP, the DC, Nthabiseng Makoae (BNP MP), ‘Matšepo Ramakoae, ‘Matebatso Doti, Lepota Sekola (all ABC MPs), DC deputy leader Motlalentoa Letsosa, DC MP Lethusang Kompi and senator Kemiso Mosenene.

They all accuse Dr Thabane of conniving with another coalition partner, Alliance of Democrats (AD) leader and Deputy Prime Minister Monyane Moleleki, to “unlawfully” prorogue parliament.

Dr Thabane, Dr Moleleki, King Letsie III and the Attorney General Haae Phoofolo are first to fourth respondents respectively.

Even though fellow coalition partner, the Reformed Congress of Lesotho (RCL) is not an applicant, BNP leader Thesele ‘Maseribane states in his supporting affidavit that RCL leader Keketso Rantšo is backing the court action. If that is true, since Ms Rantšo did not file her on separate affidavit, it means the coalition of four is now split through the middle. Ms Rantšo remains a key cabinet member despite her disputed leadership of the RCL.

The applicants not only want the Constitutional Court to nullify Dr Thabane’s 20 March 2020 government gazette proroguing parliament. They also want the premier declared unfit to continue in office and an order for his removal. That relief however appear tenuous after remarks from Judge Sakoane during the hearing (see story above) that courts cannot order the removal of a prime minister.

They want the court to rule that “the collusion” of Dr Thabane and Dr Moleleki to prorogue parliament without the unanimous consent of the other coalition partners and the specific consent of King Letsie 111 was “unconstitutional and unlawful”, among other reliefs sought.

The case got underway on Friday and continued on Monday and Tuesday before the judges reserved judgement to next Friday.

The applicants were represented by Attorneys Kuili Ndebele, Monaheng Rasekoai and Advocates Christopher Lephuthing and Letuka Molati.

Senior counsel, Advocate Motiea Teele (KC), appeared on behalf of all the respondents. He was supported by the Attorney General Adv Haae Phoofolo, Adv Salemane Phafane and Attorney Qhalehang Letsika.

Dr Thabane prorogued parliament from 20 March to 19 June 2020 on the grounds

One of the applicants’ lawyers, Attorney Rasekoai, on Friday told the court that Dr Thabane had acted irresponsibly through his failure to observe the requirements of section 91(3) of the constitution. The section requires the premier to inform parliament and the King of his intention to act on his own if the King has not acted on his advice by a certain date.

“The Prime Minister should have followed all mandatory requirements of section 91(3) of the constitution,” argued Attorney Rasekoai.

“Therefore he (Dr Thabane) was in utter breach of the same clause which he relies on to prorogue parliament. Section 91(3) of the constitution requires him to inform His Majesty that he (Dr Thabane) intends to do the act after the expiration of the time he had given His Majesty lapses. The Prime Minister never informed the King that he intends to act on his own and he also failed to report to the parliament which he is accountable to.”

He was supported by Adv Molati who insisted that the prorogation was illegal on the grounds that Dr Thabane failed to adhere to all the provisions of section 91(3) of the constitution which require him to report to parliament after he has acted without the consent of the King.

“The prime minister failed to report the issue of prorogation to parliament and even this very moment, he has not done so and that is unlawful. The same section 91(3) requires him to report to parliament (after he has acted in place of the King),” Adv Molati said.

Section 91(3) of the constitution states that: “Where the King is required by the constitution to do any act in accordance with the advice of any person or authority other than the Council of State, and the Prime Minister is satisfied that the King has not done that act, the Prime Minister may inform the King that it is the intention of the Prime Minister to do that act himself after the expiration of that period to be specified by the Prime Minister, and if at the expiration of that period the King has not done that act, the Prime Minister may do that act himself and shall, at the earliest opportunity thereafter, report the matter to parliament; and any act so done by the Prime Minster shall be deemed to have been done by the King and to be his act”.

Adv Teele however, argued that Dr Thabane acted within his constitutional powers when he prorogued parliament.

He said section 91(3) empowered Dr Thabane to act on his own if the King did not act on his advice.

“There are no facts put before court that the prime minister acted unlawfully as the applicants’ argument is based on theory. The government did its part and informed the speaker of parliament therefore the failure of the speaker to inform members of parliament about the prorogation must not be put on the doorstep of the prime minister.

“It cannot be that members of parliament are immune to Coronavirus. The prorogation has achieved its purpose to safeguard the health of parliamentarians. Prorogation is the discretion of the prime minister when he is convinced there is danger. It is the responsibility of the government to ensure safety of people and prime minister acted by proroguing parliament,” argued Adv Teele.

He also accused coalition partners and ministers Chief Maseribane and Ms Rantšo of breaking their oath of secrecy by “disclosing what they ought not to disclose” when they disclosed to the court details of their 20 March meeting with King Letsie III and Dr Thabane.

He further argued that ABC and BNP did not have the legal authority to sue Dr Thabane on issues relating to parliament as political parties were not members of parliament.

Justice Sakoane reserved judgement to enable the judges to apply their minds to the strong submissions made by both sides.

“The submissions were very weighty and need time to consider while bearing in mind that the matter is of national importance. Judgement is reserved to next week Friday,” said Justice Sakoane.


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