THE HIGH Court has ordered lawyers to formulate a joint case to be argued as a consolidation of an application challenging the dissolution of parliament and another seeking to prevent government from utilising public funds beyond tomorrow.
This comes after two separate court applications, one of them by prominent lawyer, Advocate Haae Phoofolo King’s Counsel (KC) who last Thursday filed a constitutional application seeking to stay the decision by His Majesty King Letsie III to dissolve parliament and call for the 3 June 2017 elections.
On the other hand, Basotho National Party (BNP) spokesperson, Machesetsa Mofomobe and political activist, Mohato Seleke filed a separate constitutional application seeking to interdict Finance Minister Tlohang Sekhamane from withdrawing funds from the main bank account of the government starting on 31 March 2017.
But a panel of five High Court judges on Monday ordered that the applications be consolidated to form one case.
The judges ordered the lawyers to agree on the points to be argued to shorten the proceedings.
The court also ordered that the case should be heard tomorrow, while judgment would be delivered on Monday.
Justice Teboho Moiloa said: “We have deliberated on the cause of action to be taken and we have decided that a stated case should be prepared and be filed by 2pm on Wednesday.”
“This must include whether we have jurisdiction to hear this case.
“You should also address us on the interim relief sought to review His Majesty’s decision, but you must be aware that I have already drawn your attention to section 91 (5) of the Constitution.”
Justice Moiloa further said: “The whole purpose is to settle the anxiety of the public and to enable parties to know where they stand.”
The panel of judges is composed of Justices Moiloa, Semapo Peete, Lebohang Molete, Molefi Makara and Keketso Moahloli.
In their notice of motion, Messrs Mofomobe and Seleke want the minister to be ordered to stop authorising any withdrawals from the Consolidated Fund- a term used in many countries with political systems derived from the Westminster system to describe the main bank account of the government.
They also seek the court’s declaration that Mr Sekhamane did not table budgetary estimates for the 2017/8 financial year in the National Assembly ahead of the no-confidence motion that toppled Prime Minister Pakalitha Mosisili’s government.
The duo argues that any authorisation of withdrawals from the Consolidated Fund by Mr Sekhamane to pay for government expenditure for the 2017/18 financial year would contravene section 113 (a) of the Constitution read with section 18 of the Public Financial Management and Accountability Act (2011) “and therefore null and void”.
Section 113 (a) of the Constitution states: “Parliament may make provision under which, if it appears to the minister for the time being responsible for finance that the Appropriation Act for any financial year will not come into operation by the beginning of that financial year, he may authorise the withdrawal from the Consolidated Fund of moneys for the purpose of meeting expenditure necessary to carry on the government of Lesotho in respect of the period commencing with the beginning of that financial year and expiring four months thereafter or on the coming into operation of the Act, whichever is the earlier:
“(a) the moneys so authorised to be withdrawn in advance of the Appropriation Act for any financial year shall not exceed in total one-third of the sums included in the estimates of expenditure for the proceeding financial year that have been laid before the Assembly.”
Section 18 of the Public Financial Management and Accountability Act (2011) provides that: “if it appears to the Minister that an appropriation Act for any financial year will not come into operation from the beginning of financial year, the Minister may approve withdrawal from the Consolidated Fund in accordance with section 113 of the Constitution.”
Messrs Mofomobe and Seleke also seek to stop Mr Sekhamane from authorising withdrawals from the Consolidated Fund to bankroll the snap polls.
They further seek a declaration that any authorisation of withdrawals from the Consolidated Fund for using any unspent allocated money under the Appropriation (2016/2017) Act, 2016 government expenditure for financial year 2017/18 be rendered null and void.
Alternative to the aforementioned prayers, Messrs Mofomobe and Seleke seek a declaration that the dissolution of parliament on 6 March 2017 effectively terminated all business in the National Assembly “including such estimates for revenues and expenditures of Lesotho for financial year 2017/18”.
The duo also wants the respondents to foot the costs of suit in the event of opposition.
His Majesty acceded to Dr Mosisili’s advice to dissolve parliament after the seven-party coalition government lost a no-confidence vote in parliament on 1 March 2017.
Dr Mosisili’s government was toppled by a coalition consisting of the All Basotho Convention (ABC), Alliance of Democrats (AD), BNP and Reformed Congress of Lesotho after garnering the support of at least 74 MPs in the 120-member National Assembly, where at least 61 seats are needed to form government.
The opposition intended to form a government immediately after the no-confidence vote. They intended to have AD leader Monyane Moleleki replace Dr Mosisili as Prime Minister for the first 18 months after which he would be succeeded by ABC leader Thomas Thabane.
However, their plans were scuttled when His Majesty dissolved parliament and called for the 3 June elections.
The dissolution was effected despite the opposition bloc petitioning His Majesty to reject Dr Mosisili’s advice and instead convene the Council of State.
The Council of State advises the King on key constitutional functions including calling for elections.
Its current members are Dr Mosisili, National Assembly Speaker Ntlhoi Motsamai, High Court Justices ’Maseshophe Hlajoane and Lisebo Chaka–Makhooane, Attorney-General Tšokolo Makhethe, Lesotho Defence Force commander Lt-Gen Khoantle Motšomotšo, Commissioner of Police Molahlehi Letsoepa, Law Society President Attorney Tumisang Mosotho, Principal Chief Mathealira Seeiso, ABC leader Thomas Thabane and BNP leader Thesele ’Maseribane.