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‘Thabane feeling threatened’

by Lesotho Times
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Bongiwe Zihlangu

This week’s nine-month prorogation of parliament by Prime Minister Thomas Thabane is a constitutional prerogative although one used to “avoid a political problem”, analysts say.

Last Friday, Dr Thabane wrote a letter to His Majesty King Letsie III, requesting that the 8th Parliament of Lesotho be suspended or prorogued for a period of nine months.

According to Dr Thabane’s spokesperson, Thabo Thakalekoala, the prorogation would give the leaders of the three parties in government the opportunity to sit down and iron out their differences.
Mr Thakalekoala added the prorogation would also enable the premier to engage the leaders of the opposition parties, whom the government believes are using parliament to destabilise it.

The All Basotho Convention (ABC) led by Dr Thabane, Deputy Prime Minister Mothetjoa Metsing’s Lesotho Congress for Democracy (LCD) and Sports Minister Thesele ‘Maseribane’s Basotho National Party (BNP) formed a coalition government after the 2012 general election resulted in a hung parliament.

But after a series of unsavoury events — which included an attempt in March this year by the main opposition Democratic Congress (DC) and some members of the Bloc of Political Parties in Parliament, to pass a no-confidence vote against the government — Dr Thabane made the request for the prorogation, which was granted on Tuesday this week.
In recent weeks, the LCD has also gone public to attack Dr Thabane for not consulting with his coalition partners when making major decisions, which the party said included last month’s sacking of Government Secretary Motlatsi Ramafole and the current attempt to expel Attorney General Tšokolo Makhethe and Director of Public Prosecutions Leaba Thetsane.

Nqosa Mahao, former Dean of the Faculty of Commerce, Law and Management at South Africa’s Wits University, says the law does not impose any conditions as to when a prorogation of parliament can take effect.
According to Professor Mahao, one of the founding fathers of the constitution of Lesotho, the prime minister does not need to consult with the Council of State when requesting the prorogation of parliament or justify such a move.

However, Prof Mahao suggests the prorogation was sought because Dr Thabane “feels threatened”.
“Prorogation of parliament can be sought when the PM suspects that his position is compromised,” Prof Mahao said.
“It happened in 1965 when the then ruling BNP lost one constituency after one of the party’s MPs was challenged in court and lost, thus losing the majority in parliament. Government had to prorogue parliament while a by-election was organised.”

Prof Mahao goes on to describe prorogation as “a tunnel in which a sitting PM can hide while trying to find a solution to a problem”.
“Quite obviously when you’re a ruler, you will not go out and tell the public that you have a problem and that you feel compromised,” Prof Mahao said.
“Even if the PM provides reasons, they can never be challenged in a court of law because he is acting within his rights.”

The advantage of the prorogation, Prof Mahao adds, is that it will give the coalition government leaders “an opportunity and a bit of time to sort themselves out”.
“It will also help government to stabilise while the leaders engage each other in talks.”

However, Prof Mahao is quick to add the downside of prorogation is all the business that the 8th Parliament was working on is “cancelled”
“All the Bills that are before parliament, both in the National Assembly and Senate, will be cancelled and introduced anew when parliament resumes,” Prof Mahao said.
It is expected that parliament will resume in March 2015, with a Speech from the Throne by the King, which will be giving parliament a new mandate.
“But things could also go terribly wrong because it’s like being at a crossroads.
“There are risks involved whichever direction you turn,” Prof Mahao says.

According to renowned lawyer, Advocate Tekane Maqakachane, prorogation effectively means the “termination of a session of parliament”. He quickly adds it is a “prerogative given to the crown by law, to be exercised whenever.”
“This is derived from the Westminster Model of parliament used in Lesotho and the PM does not have to have a reason to exercise this prerogative,” Adv Maqakachane says.
“England, Canada and Australia are some of the states using a similar parliamentary model and there’s absolutely no reason to justify prorogation.”
But, he adds, in most cases, the prerogative to exercise prorogation applies where there is a political stalemate or situation “which the executive wants to avoid”.
“There should not be a reason but in most cases, it is exercised where there’s a political reason,” Adv Maqakachane said.
“A political problem will be avoided and normalcy restored as a result of exercising this prerogative.”

He also echoes Prof Mahao’s sentiments that all business before parliament, will be written off while a new mandate will be given by the King, during the Speech from the Throne, when parliament resumes in March.
On the advantages, Adv Maqakachane says the prorogation will provide “a cooling off space”, to allow for the coalition leaders to “address any existing political problems”.
“During that period, people come to their senses although it does not mean what is being avoided will not persist,” Adv Maqakachane said.

He also warns that if the political stalemate persists beyond the current prorogation “it can be repeated until the country goes for elections in 2017”.
Asked to comment on the consequences of prorogation in the context of Lesotho, Adv Maqakachane says the situation which is prevalent in the country currently “tells you there are reasons behind the prorogation”.
“The situation tells you the PM had to exercise this prerogative,” Adv Maqakachane said.
He added once parliament is prorogued “there’s no supervisory body to the executive”.
“In any democratic dispensation, the executive must account to parliament. In the absence of parliament, there’s no supervisor and no business of parliament will be in place,” Adv Maqakachane noted.
Meanwhile, Dr Motlamelle Kapa of the Department of Political and Administrative Studies at the National University of Lesotho (NUL), describes the prorogation as an advantage for the coalition government leaders to “act more seriously on national issues”.
“It’s an advantage for the coalition government leaders to reflect on their agreement based on the experience they have had so far, as well as other issues,” Dr Kapa says.
“Based on the prevalent situation currently, prorogation helps avert the cost of a fresh election and is also a constitutional mechanism which helps people to cool off and avoid making hasty decisions, which could have undesirable consequences.”

A concerned Dr Kapa also maintains that what remains the biggest challenge now is to “amend the constitution” to allow more time for political parties to “negotiate the formation of coalition governments in Lesotho”.
“Coalitions appear to be the only option after the introduction of the Mixed Member Proportion (MMP) model and we should get it right as a country, to set an example for other African states,” Dr Kapa says.

In December 2008, Canadian Prime Minister Stephen Harper prorogued parliament in a move widely described in the media as “an act of clever desperation on the part of a minority government, caught off-guard by opposition parties’ united stance against its plans to eliminate public subsidies for political parties (among other things)”.
“For a prime minister to shut down parliament when he is about to lose a confidence vote is unacceptable from a democratic perspective but understandable from a political one,” the media reports said.

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