Lekhetho Ntsukunyane
DEMOCRATIC Congress (DC) leader Pakalitha Mosisili is vested with “too much” constitutional power although this power is not absolute as to render him “untouchable,” analysts have said.
Section 5.3.1 of the DC Constitution states that the leader is a pinnacle of the party, “but he is not above the party itself or its general or leadership conferences.”
This clause, according to constitutional law expert Advocate Hoolo ’Nyane, shows that Dr Mosisili does not wield absolute power within the party.
“He is subject to the organisation and this is the principle that suppresses absolutism in terms of comparisons of powers within the DC,” said Advocate ’Nyane who is also a lecturer at the National University of Lesotho (NUL).
Advocate ’Nyane and other analysts’ comments follow the recent standoff between the DC’s National Executive Committee (NEC) and Dr Mosisili who is party leader as well as NEC president, which was triggered by factional battles for control of the party.
The party is split into the Lithope (loosely translated to mean girlfriends) and the Lirurubele (butterflies) factions with the former throwing its full weight behind Dr Mosisili while the latter has crystallised around deputy leader Monyane Moleleki.
The Lirurubele faction enjoys greater support in the NEC and the youth league executive committee, while the Lithope faction enjoys more support from the women’s league executive committee.
The DC’s NEC resolved on 10 November 2016 to withdraw the party from the seven-member coalition government citing its failure to address corruption among other issues and directed its members to resign their cabinet positions including Dr Mosisili who is prime minister.
However, this was rejected by Dr Mosisili and his followers on grounds that procedures were violated.
But since then, only five DC ministers and deputy ministers, namely Mr Moleleki, Mokhele Moletsane, Ralechate ’Mokose, Kotiti Liholo and ’Manthabiseng Phohleli have resigned.
Following Dr Mosisili’s resistance, the NEC on 16 November 2016, wrote him a letter to show cause why it could not suspend him pending his appearance before a disciplinary committee.
He retaliated by issuing letters of suspension to some NEC members and further called for a special conference from 2 to 4 December 2016, in a bid to discipline the NEC and bring to an end the infighting.
In light of these developments, Advocate ’Nyane said “on principle,” the NEC acted within its rights to withdraw the DC from the government.
“The question is whether the NEC has powers to do that. Contestation is that the party’s general or special conference is the one that can come up with such a decision. Also the issue is that the leader should have been present when a decision by the NEC to withdraw the party was made.
“But if you look at the powers and objectives of the NEC in terms of the party constitution, you will realise that the committee has some immense powers in between the party conferences. Though the signature of the leader is the one that appears in the coalition agreement; a decision was made by the NEC on behalf the party to sign the coalition agreement. The coalition agreement is an agreement between parties, not leaders. So in principle, the NEC is right to terminate the agreement,” Advocate ’Nyane said.
He said the NEC held the power of the party in between the conferences, adding, “In other words, where we have the party as one of the structures within the DC, its general roles would be overseen by the NEC”.
He said NEC acted on behalf of the party and there were no specific requirements stipulated in the constitution that to the effect that certain decisions should be referred to the general conference.
“So when we talk about the party in between the conferences we are talking about the NEC,” Advocate ’Nyane said.
However, he said the NEC did not have the power to suspend Dr Mosisili as he was not just an ordinary member of the party.
“They (the NEC) are treating the leader like an ordinary member of the party yet the leader is actually another structure in the DC, not an ordinary member,” he said, adding in other issues the NEC could make decisions even in the absence of the leader as long as they constituted a quorum.
“But the question arises where they want to suspend the leader.
“That is a bit problematic because it tests powers between the two constitutional structures, namely the NEC and the leader. The leader is part of the NEC but he is also an independent structure. So the way they approach that structure cannot be the same as the way they can approach an ordinary member.
As we study the constitution, there is no clause which says the NEC can discipline the leader.”
He said before rushing to ‘discipline’ Dr Mosisili, the NEC should have first consulted sections in the party constitution “which relate to how this structure (the leader) gets into office, how it is dealt with and how it is terminated.”
“The constitution seems to give considerable powers to the office of the leader, which cannot simply be disregarded and be called an ordinary member.
They (NEC) need to go to sections that deal with that structure and the relationship between that structure of president and the NEC; how they interrelate; what are the remedies provided to each structure when either of these structures has defaulted or breached some principle of the party,” Advocate ’Nyane said, adding, “The NEC rushed to hit the leader when those powers do not seem to come up clearly from the constitution”.
For his part, prominent political analyst from the NUL, Nthakeng Pheello Selinyane said Dr Mosisili should not be regarded as the “Holy Father in the Catholic order” but he should act in consultation with the NEC.
He said without the NEC, Dr Mosisili’s powers were limited.
However, Mr Selinyane was quick to point out that Dr Mosisili, unlike the NEC, invoked a particular section 5.3.1 of the DC constitution “where it specifically provides that he can suspend any member in the NEC who appears to destabilise the party”.
“The section further says the leader can only arrive at that decision after such a member has been given a platform to be heard. This section specifically gives the leader powers to suspend NEC members. But the same powers do not seem to exist for the NEC to take a disciplinary action against the leader,” Mr Selinyane said.
Mr Selinyane said while it appeared Dr Mosisili had far-reaching powers because the leader was also described as the pinnacle of the party, he was nevertheless “not untouchable” as the same constitution further stated that he is not above the party and the general and leadership conferences.
Mr Selinyane and Advocate ’Nyane concurred that by calling the special conference, Dr Mosisili acted within his powers, but it appeared from the constitution that the agenda of the conference has to be tabled by the NEC.
“His part will just be to make an opening speech and then the NEC takes over. It appears from the constitution that irrespective of how the conference originated the NEC would still table the agenda to the conference,” Advocate ’Nyane said.
He said Dr Mosisili and his followers should be advised not to “fall into the trap” of excluding the NEC in the coming conference “because the committee is key”.
“How they are going to work is something else. Something which is also key is section 3.2.6 which refers to a motion of no confidence in the NEC. Even in this instance there is a procedure to be followed and the motion cannot just erupt spontaneously in the conference,” Advocate ’Nyane said.
Both analysts said the DC issues were “potentially litigious, adding this meant the final interpretation lay with the courts of law.
