Mohalenyane Phakela
TWO opposition political parties have claimed the national reforms process would have been completed a long time ago had it not been for government’s actions which have since stalled the parliamentary procedure.
The parties, namely the All Basotho Convention (ABC) and Basotho Patriotic Party (BPP), make the claim in an application jointly filed before the Constitutional Court on Monday this week.
The application seeks to stop a special sitting of parliament whose business is passing a constitutional draft law dubbed the Omnibus Bill.
The special sitting had been called by National Assembly Speaker, Tlohang Sekhamane, on 14 August 2023 but never took place following a court challenge by the Media Institute of Southern Africa (MISA) Lesotho Chapter, its chairperson Kananelo Boloetse and a political party called Yearn for Economic Sustainability (YES).
The three activists contended in their court challenge that the current 11th parliament could not 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. Instead, Mr Boloetse and his co-applicants wanted the whole reforms process started afresh and the case is still pending in the courts.
In the ABC and BPP court challenge, the parties are represented by their respective leaders, Nkaku Kabi and Tefo Mapesela, whose lawyer, Advocate Christopher Lephuthing, moved the case before a three-member panel of Chief Justice Sakoane Sakoane and Justices Molefi Makara and Fumane Khabo on Tuesday this week. However, the judges ruled that Messrs Kabi and Mapesela’s application was not urgent and therefore, had to join the queue of other outstanding matters pending before the Constitutional Court.
Mr Sekhamane, the Clerk of the National Assembly Advocate Fine Maema King’s Counsel (KC) and Attorney-General Adv Rapelang Motsieloa KC, are first to third respondents respectively, in Messrs Kabi and Mapesela’ application.
Mr Kabi states in his founding affidavit also filed on behalf of his co-applicant, Mr Mapesela, that government’s continued failure to respect agreements made with the opposition had delayed the reforms process and also takes issue with the way the special siting of parliament had been constituted.
The affidavit notes among the promises broken by the government was that no key public service posts would be filled until the reforms process was complete. The document also cites the sacking of principal secretaries and government’s recruitment of relatives and political party members to key positions as more evidence of this broken promise.
The applicants give an example of Advocate Mpeo Mahase-Moiloa, who was appointed Public Service Commission chairperson in June 2023. Adv Mahase-Moiloa served as the country’s Law and Justice Minister in 2007, before becoming Lesotho’s Ambassador to Belgium from 2013 until 2018.
“We agreed that people will only be appointed to statutory positions after the reforms had been completed. The undertaking on this matter had been that in order to depoliticise the public service, officials be recruited on the basis of reformed laws. They are busy recruiting their relatives to those positions to which there has been an agreed moratorium. This fits into the broader accountability scheme and they are bound to account for the way they serve people who put them into power.
“People want a public service that is apolitical and for the government to appoint the renowned politician and former minister as the chairperson of the Public Service Commission at this critical stage of the reforms is a serious matter. It is really problematic. The government is saturating statutory positions with politicians,” Mr Kabi writes in the affidavit.
“If the will of the opposition political parties were to prevail, the reforms process would have long been completed transparently and with public involvement. We made several demands to government in meetings which were specifically scheduled to break the deadlock. A stage was reached when we informed government that we will only vote in support of the reforms if they stop recruiting members of their party into statutory positions before the reforms are completed.
“They went ahead to make appointments to the key positions and this imperilled the reforms process, hence there had to be clarion calls and directions issued by the Southern Africa Development Community (SADC) and the United Nations Development Project (UNDP) to submit that the reforms are necessary. They are aimed at preserving comity between the courts, on the one hand, and the legislature and the executive on the other. They are urgent. In our considered view, as Parliament, we remain constitutionally mandated to pass the Omnibus Bill. The views of Basotho have been collated and documented. Basotho have denounced the partisan recruitment of politicians into statutory positions in no uncertain terms and as an MP of the people, I have a duty to act firmly against the politicisation of the public service.”
Mr Kabi further argues in the court document: “The Speaker undermined the tenet of our democracy in so calling the special meeting in the manner he did.
“The opposition lamented the perceived constitutional and regulatory reality that the Speaker lacked the power to authorise the special meeting when there was no emergency.
“My party expressed, in its manifesto, that we will be opposed to strategies that are reasonably believed to undermine democracy. There are, therefore, institutional and other risks that I wish the opposition to avoid when dealing with the government that is not respecting the separation of powers.
“For the record, the ABC is a reformist party. I personally subscribe to the reforms agenda and it is in this context that I wish to help the Speaker to get it right when he determines and controls the internal arrangements necessary for calling special meetings of parliament. My reading of the law is that the National Assembly has power to determine when and how special meetings of parliament, proceedings and procedures concerning the business of reforms, must be conducted.
“The government and the speaker engaged in a plan of calling the special meeting. What is surprising about this plan is that they feigned some state of emergency for the purposes of making the Standing Order … the business they have dodged and frustrated for a long time. It is enough to say, at this stage, that this Standing Order is unlawful. It was irregular for the first respondent (Sekhamane) to have formulated the impugned Standing order in the luxury of his home. There is no emergency. We are already obligated to meet as MPs in due course.”
Background to the reforms stalemate
The current 11th parliament was recalled from its winter recess for an urgent sitting on 14 August 2023 to deliberate on the reforms process and consider passing the Omnibus Bill, which encompasses most of the envisaged reforms.
But the process was deferred after MISA-Lesotho, its chairperson Boloetse and political party YES, petitioned the Constitutional Court seeking an order to cancel the special sitting of parliament which had been called to consider the reforms.
The applicants argued the current 11th parliament could not 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.
Instead, Mr Boloetse and his co-applicants wanted the whole reforms process started afresh.
However, the Constitutional Court dismissed their application last Friday, prompting them to escalate their case to the Court of Appeal on Monday this week.
The National Assembly special sitting which had been deferred to this Monday could not proceed again due to Mr Boloetse’s appeal and also this fresh litigation by Messrs Kabi and Mapesela.
Mr Sekhamane briefly told members of parliament (MPs) during Monday afternoon’s sitting that they could not proceed with business due to the two pending litigations. He then indefinitely adjourned the National Assembly sitting.
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