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‘King backed himself into a corner’

by Lesotho Times
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Lekhetho Ntsukunyane

BY dissolving parliament without soliciting the advice of the Council of State, King Letsie III removed his insulation from political controversy, analysts have said.

His Majesty dissolved parliament on Tuesday this week to pave the way for the holding of elections after the passing of a parliamentary no-confidence vote on Prime Minister Pakalitha Mosisili’s government on Wednesday last week.

Dr Mosisili was toppled by an alliance of four opposition parties, namely All Basotho Convention (ABC), Alliance of Democrats (AD), Basotho National Party (BNP) and Reformed Congress of Lesotho (RCL) after garnering the support of up to 74 MPs in the 120-member National Assembly, which just requires 61 seats to form government.

Soon after the vote, Dr Mosisili advised King Letsie III to dissolve parliament so as to call for Lesotho’s third general elections in five years. The opposition bloc also petitioned His Majesty last Thursday to reject the government’s advice to dissolve parliament, calling on the monarch to instead endorse their nominee, AD leader Monyane Moleleki, to replace Dr Mosisili as prime minister.

Through their lawyer, Attorney Tumisang Mosotho – who is also president of the Law Society and a member of the Council of State – the opposition bloc last Thursday requested King Letsie III to convene the Council of State which advises the King on key constitutional functions including calling for elections.

However, King Letsie III went on to dissolve parliament on Tuesday, with the monarch expected to announce the date of elections within four days from the date of dissolution in terms of the constitution.

Following the dissolution of parliament, King Letsie III’s Senior Private Secretary and Secretary to the Council of State, Monehela Posholi, wrote a letter explaining to Atty Mosotho why His Majesty had not sought the advice of the Council of State.

In the letter dated 7 March 2017, Mr Posholi notes: “I acknowledge receipt of your letter of 2 March 2017 on the above subject matter (Meeting of the Council of State). Upon receipt of your letter, I consulted His Majesty on the said correspondence.

“His Majesty included your submission among a number of factors that were already under consideration towards a final determination on the advice that had been tendered by the Right Honourable the Prime Minister on 1 March 2017 in relation to the motion of no confidence in government of Lesotho passed by the National Assembly.”

Having “carefully” considered all factors, Mr Posholi says King Letsie III decided, “in the interest of national unity and to avoid possible constitutional crisis, to accede to the advice of the Right Honourable the Prime Minister for dissolution of parliament in preparation for the holding of general elections”.

Mr Posholi further states that His Majesty had “deemed it not prudent to convene a meeting of the Council of State” as Atty Mosotho had requested.

“We sincerely hope that you will understand and appreciate the predicament that His Majesty faced,” Mr Posholi concludes.

The King’s decision was met with consternation by the opposition alliance, with ABC leader Thomas Thabane saying His Majesty risked sullying the goodwill of Basotho by being “ensnared” by politicians.

Analysts who spoke with the Lesotho Times said King Letsie III had backed himself into a corner by failing to convene the Council of State and soliciting its advice before dissolving parliament – which is a constitutional requirement.

Section 83 (4) (a) stipulates that the King can agree with or disregard advice by the premier to dissolve parliament and call for elections if it is not “in the interests of Lesotho”.

“. . . if the Prime Minister recommends a dissolution and the King considers that the Government of Lesotho can be carried on without a dissolution and that a dissolution would not be in the interests of Lesotho, he may, acting in accordance with the advice of the Council of State, refuse to dissolve Parliament;”

Section 83 (4)(b) states that “if the National Assembly passes a resolution of no confidence in the Government of Lesotho and the Prime Minister does not within three days thereafter either resign or advise a dissolution the King may, acting in accordance with the advice of the Council of State, dissolve Parliament . . .”

Section 83. 4(c) further states that “if the office of Prime Minister is vacant and the King considers that there is no prospect of his being able within a reasonable time to find a person who is the leader of a political party or a coalition of political parties that will command the support of a majority of the members of the National Assembly, he may, acting in accordance with the advice of the Council of State, dissolve Parliament.”

The Council of State consists of Dr Mosisili, National Assembly Speaker Ntlhoi Motsamai, High Court Justices ’Maseshophe Hlajoane and Lisebo Chaka–Makhooane, Attorney-General Tšokolo Makhethe, Lesotho Defence Force Commander Khoantle Motšomotšo, Commissioner of Police Molahlehi Letsoepa, Atty Mosotho, Principal Chief Mathealira Seeiso, ABC leader Thomas Thabane and BNP leader Thesele ’Maseribane.

Constitutional law expert, Dr Hoolo ’Nyane, who is also head of the Public Law Department at the National University of Lesotho (NUL), said even though Mr Posholi had not quoted a specific constitutional provision in his letter to Atty Mosotho explaining the King’s decision, “we can reasonably assume that His Majesty based his decision in line with Section 83 of the Constitution”.

If that were the case, Dr ’Nyane posited, it was unprocedural for the monarch to dissolve parliament without the advice of the Council of State.

“There is no space in the constitution for the King to make discretionary decisions; not even a single one,” he said.

“The current constitution, unlike the old one of the 1960s, does not provide the King with any discretionary powers whatsoever.”

Dr ’Nyane said Mr Posholi’s letter suggested that the King was “sentimental” in his decision.

“For instance, Mr Posholi says His Majesty based his decision on the interest of national unity and to avoid a possible constitutional crisis. But it looks like the King has brought the problem on himself. The reason why the law says the King should consult with the Council of State is to protect him from political controversy,” added Dr ’Nyane.

Another constitutional expert, Professor Nqosa Mahao, echoed the sentiments saying: “The nature of our constitution plainly insulates the King from political controversy by stating that he should consult with the Council of State in decisions on all matters pertaining to dissolution as specified in section 83(4).

“In this case, the King has acted without such insulation, exposing the monarch to controversy. It’s as if he made the decision under pressure.”

Prof Mahao, who is also NUL vice-chancellor, further indicated that King Letsie III was obliged by the constitution to seek the advice of the Council of State when he sets the elections date.

“I wonder if His Majesty will be able to do it now after he failed to convene the Council of State meeting in the first and most significant instance.”

He also queried the outgoing government’s ability to get the funding for the polls in light of Finance Minister Tlohang Sekhamane’s failure to table budgetary estimates ahead of the no-confidence motion.

“I wonder where the government will get the money to hold the elections when they failed to table budget estimates because the opposition had argued that the government no longer commanded enough numbers in parliament,” said Prof Mahao.

Also from NUL, prominent political analyst Professor Mafa Sejanamane argued the outcome of the coming elections would “not reflect the will of the people under prevailing circumstances.”

The pro-vice chancellor said for Lesotho to hold “successful and fair” elections, the reforms process should be conducted and concluded “especially reforms relating to security issues.”

Lesotho has embarked on wide ranging reforms of the constitutional, security, public and sectors among others as recommended by a Southern African Development Community commission of inquiry into Lesotho’s instability convened in 2015.

However, Dr Mosisili’s Economic and Political Advisor Dr Fako Likoti begged to differ, saying King Letsie III acted within his constitutional mandate by dissolving parliament.

“It is surprising that people are so much interested in the Council of State today when they didn’t say anything about this body when parliament was prorogued and eventually dissolved in 2012. Nobody said anything about the Council of State then! Why now?”

Dr Likoti added that King Letsie III also made the decision based on the legal advice of Attorney-General Tšokolo Makhethe, who had posited that the prime minister’s advice was “mandatory and binding”.

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