UTLOANG KAJENO
AT the height of the instability of the previous coalition government that was in power from May 2012 to April 2015, then leader of the main opposition Democratic Congress (DC) and now incumbent Prime Minister Pakalitha Mosisili in 2014 thundered in one of his many famous speeches that government could by law, be formed in parliament without the holding of an election in the event of a no confidence vote.
In this speech, the then leader of the opposition was addressing the possibility that the political parties of the congress formation could coalesce and unseat the government of the day through a vote of no confidence without the country holding a snap general election.
Dr Mosisili was correct. He was quoting section 83 of the Constitution of Lesotho that provides among others :83(4) “In exercise of his powers to dissolve or prorogue Parliament, the King shall act in accordance with advise of the Prime Minister: Provided that – (a) 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; (b) 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 or resign or advise a dissolution the King may, acting in accordance with the advice of the Council of State, dissolve Parliament; and (c) if the office of the 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.”
In addressing the DC leadership conference the PM however, unlike in the past, upon realizing that the prospect of the looming vote of no confidence was a sad reality, opted to leave out certain salient provisions of the Constitution. Whether he left them out deliberately or not we might never know.
These subsections are the following, namely: (a) and (c).
Subsection (a) provides that if the PM recommends to the King that he dissolves Parliament but that the King considers that the government of Lesotho can be carried on without dissolution and that a dissolution would not be in the interests of Lesotho, the King may, acting in accordance with the advice of the Council of State, refuse to dissolve Parliament.
This subsection leaves the option of dissolving Parliament to the King acting on the advice of the Council of State on taking into account the interests of Lesotho. My take regarding this subsection is that the option is left to the Council of State to advice the King not to dissolve Parliament in the interests of Lesotho.
I have no doubt in my mind that the prevailing current economic downturn in Lesotho, some of which have been brought about by the unfortunate policies of the current coalition government, will bring to the consideration of the Council of State whether to advise the King to dissolve Parliament. Under the current economic downturn in Lesotho, it is inconceivable that Lesotho can afford another election moreso when there is an option to resort to subsection (c).
This necessarily leads me to subsection (c) which provides that if the office of the 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 coalition of political parties that will command the support of a majority of members of the National Assembly, the he can dissolve Parliament.
This is precisely the subsection that the PM was referring to towards the end of 2014 when he said the Constitution stipulates that there might not be a need to dissolve Parliament and hold a snap election if from within the ranks of incumbent Members of Parliament (MPs) there is a leader of a political party or coalition of political parties that will command the support of majority of the MPs. Curiously, this time around, he avoided mentioning this to his audience, whether this was deliberate or not is not clear.
What was lacking in the PM’s carefully prepared speech was the critical point that subsection (a) and (c) are also susceptible to two meanings that obviate the need for the dissolution of Parliament.
Firstly, in terms of section (a) if the Council of State advises the King that the life of Parliament does not end when there are compelling reasons in the interests of Lesotho, I reckon the prevailing economic downturn is one such reason.
Two, this means that in terms of sub-section (c) the King might consider not to dissolve Parliament if there is a leader of a political party or coalition of political parties that commands the majority of members of the National Assembly. This means therefore that by passing a vote of no confidence in his government does not inevitably lead to dissolution of Parliament there are other options that the PM avoided mentioning. There might clearly be continuity with this Parliament but with a new government.
Further the Prime Minister also left out, section 87(5) (a) which provides that: “The King may, acting in accordance with the advice of the Council of State, remove the Prime Minister from office – if a resolution of no confidence in the government of Lesotho is passed by the National Assembly and the Prime Minister does not within three days thereafter, either resign from office or advise a dissolution of Parliament.
Evidently this subsection seems to be designed to facilitate the removal of the Prime Minister from office by the King, hence the Prime Minister might have left it out too, deliberately from his audience. However, this removal can only be effected if within three days after the passing of the resolution of no confidence he does not resign or advise a dissolution of Parliament, following the advice of the Council of State.
The PM in his address also made reference to the fact that if MPs pass a vote of no confidence in his government and therefore unseat him and his cabinet democratically, they all stand to repay the M500 000 interest-free loans that were extended to them on being elected to the august house. This assertion is also very flawed.
First, the PM failed to mention that if the life of the ninth Parliament ended, the possibility is that the new government might be led by a new leader who will see it only prudent and fair to repay the loans on behalf of the out-going MP’s of the ninth Parliament. This he will do in line with the relevant legislation as will be shown later. On this score, the PM was not as forthcoming with all the information. This decision might not therefore rest with him at all.
Second, this one is connected to the first one. The Loans and Guarantees Act, 1967, provides under section 6(1) that the Government of Lesotho shall be the guarantor for loans such as the M500 000 for the MPs.
“The government may, subject to the provisions of this section, guarantee in such manner and on such conditions as payment of the interest and other charges on a loan raised either within or outside Lesotho by a local authority or a body corporate or individual (in this section together referred to as the borrower).”
Subsection (3) provides: “no such loan shall be guaranteed in the case of an individual unless – (6) terms and conditions relating to the payment of the loan and to rights in anything bought with it, have been approved by the Minister in writing.”
My assertion in this regard is substantiated by the Savingram of 27th September, 2016 from the Government Secretary and Secretary to Cabinet, to the Principal Secretary (Finance) who under the subject: “Debt write-off for members of the 8th Parliament loans amounting to M32, 229, 284. 94,” informs and directs the PS (Finance) to pay all the M500, 000.00 loans to MP’s of the 8th Parliament together with the over M21 Million the debt write-off has attached to the Lesotho Revenue Authority.
In all major respects the PM’s assertion in his address is therefore flawed in that his government (that is in addition to if he will still be in control of the government) will refuse to write-off the debts of the MPs of the 9th Parliament if they pass a vote of no confidence in him and his government.
On the basis of the above the PM’s assertion in his address to the DC leadership Conference are seriously flawed and lacking in many major respects as he either deliberately or by an inadvertent omission failed to come forward with this critical information to his audience.
