Moorosi Tsiane
OPPOSITION parties behind a no-confidence motion against Prime Minister Sam Matekane say the Constitutional Court has no jurisdiction to hear an application trying to halt the motion.
The Constitutional Court should thus respect the separation of powers doctrine and throw out a case filed by Revolution For Prosperity (RFP) Thaba Moea legislator, Lejone Puseletso, to stop parliament from proceeding with the motion.
Mr Puseletso wants the motion halted until the completion of the national reforms process.
Advocate Christopher Lephuthing and Attorney Monaheng Rasekoai, who represent the parties opposing Mr Puseletso’s application, told judges Tšeliso Monapahathi, Molefi Makara and Keketso Moahloli – sitting as a Constitutional Court – that they don’t have jurisdiction to even consider the application.
Adv Lephuthing said Mr Puseletso had not alleged that there had been any irregularity in the manner in which the motion of no confidence was tabled. The court thus had no business in interfering with parliamentary processes.
“ ….Applicant in the main case has not alleged that there has been any irregularity in the manner in which the motion of no confidence was initiated….” argued Adv Lephuthing.
“Absent any violation of the constitution the imperatives of separation of powers bar judicial intervention in parliamentary proceedings. If we agree there is no violation of the constitution and all the standing orders in relation to the way the motion of no confidence was tabled, their Lordships have no business to interfere with what is happening there at the parliament.”
In line with the sacrosanct principle of separation of powers the court cannot at this stage, when the matter is still pending in parliament, assume judicial powers to determine whether what is happening there is good or bad, the lawyer argued.
“We are submitting that parliament cannot be subordinated to the judiciary….The judiciary should not interfere in the process of other branches of government unless it is mandated to do so by the constitution and here the constitution is saying let the motion be debated in parliament and be finalised there,” submitted Adv Lephuthing.
He said Section 87 (5) of the constitution empowered parliament to regulate its procedures in dealing with the passing of a no confidence motion in the government.
When the matter is finalised in parliament then the courts can assume jurisdiction. But not when the matter is still pending, he said.
Adv Lephuthing asked the court to allow parliament to continue with its business that was interrupted by Mr Puseletso’s application.
“The relief we are seeking is that, we are asking this court to declare that parliament can continue with its business and the process that was interrupted by this litigation…,” he said.
Adv Lephuthing said the court should not allow itself to be dragged into managing politics.
“The court cannot allow itself to be dealing and managing politics in parliament,” said Adv Lephuthing, exhorting the judges to let MPs do their work.
Attorney Rasekoai weighed in saying the matter had been brought prematurely before the courts
“This notice (motion of no confidence) is incapable of creating any illegal consequences whatsoever until such time it has been debated, deliberated upon and decided in parliament….
“….We therefore have a premature effort on the part of litigants to strategically stop a constitutional process which is aimed at putting a sitting head of government to task,” submitted Attorney Rasekoai.
“We respectfully submit and urge this court to conclude that if Basotho feel that their members of parliament have disrespected them or failed to fulfil their promises, then the politicians should be politically accountable to voters.
“The doctrine of separation of powers to which our constitutional democracy subscribes doesn’t allow this court to interfere in lawful exercise of powers by the legislators…..”
“…This case was prematurely brought before you and for that reason it is not right. What is being done is to embroil this judicial arm of government into institutional politics unnecessarily.”
He said there was nothing wrong with MPs collapsing a government as long as everything was done in line with the law.
“The collapsing of a government is the healthy constitutional exercise of power, there is nothing wrong in government collapsing provided they collapse in terms of law, there is nothing wrong with that……” Mr Rasekoai added.
Advocates Motiea Teele,KC, and Letuka Molati representing Mr Puseletso begged to differ, insisting that the court had jurisdiction.
“The court has unlimited jurisdiction to listen to this matter according to section 2 of the High Court Act. The applicants have invoked constitutional litigation rules. The unlimited jurisdiction that this court possess doesn’t go away merely because constitutional litigation rules are being invoked. Section 22 of the Constitution provides for rights-based review. The constitution confers jurisdiction for rights-based matter,” argued Adv Teele.
Adv Teele K.C said any law that is inconsistent with the constitution shall be void as a principle of law and legality.
He further told the court that the motion of no confidence should be guided by properly constituted laws. He said Mr Puseletso was within his rights to challenge the motion at courts if he felt his interests were being threatened.
“This case is not guided by the principle of ripeness. The motion of no confidence should be guided by properly constituted laws. This was an appropriate time to come to court. One should act when their interests are threatened,” Adv Teele argued.
In his application Mr Puseletso argues that there shouldn’t be any no confidence motions introduced in parliament, until the reforms process is completed
This because the Omnibus Bill will determine the conditions under which parliament will conduct the no confidence motions.
Judgment was reserved to 10 November 2023.
