The AG’s case never changed the constitution?



By Sofonea Shale

THE ill-fated challenge by Attorney General (AG) Tšokolo Makhethe of the appointment of Justice Kananelo Mosito as president of the Court of Appeal was an interesting test case for students of law and political science scholars. After the decision to validate Justice Mosito’s post, some people demanded the resignation of the AG, expressing doubts about his suitability to hold the office. Some even accused him of being a politician and not a public servant and saw the finality of the matter as a victory for former premier Thomas Thabane.

Others found the decision as a disruption of what they had already developed as an interpretation of the Lesotho constitution in the context of coalition governance. Critical for learners is the future of the AG’s office while observers ask with a sigh of relief whether none of the implicated sections of the Lesotho Constitution had been changed?

The Court of Appeal made up of Justices Brand, Cachalia, Maya, Shongwe and Wallis heard the appeal by AG Makhethe on the matter that was decided by Judges Musi, Potterill and Mathopo all acting as judges of these courts.  At both levels of the case, the haunting question has been whether the constitution of Lesotho and perhaps its spirit would be safeguarded.

While this may not be the first time and perhaps not the last, the question remains of why this reliance on others? Basotho would recall that the appointment of Dr Mosito as Court of Appeal president was met with many challenges including the resignation of Appeal Court judges, one of whom was then acting president. He expressed discontent over the fact that he was not appointed for the position.

A valid explanation is needed to understand why such a significant organ of governance in Lesotho is so flexible? No non-Mosotho can be a Member of Parliament (MP) while even a Mosotho with voting rights who is not an MP may not be a member of cabinet. Why can the Court of Appeal president be a non-Mosotho?

Why can the constitutional court be composed of foreigners? How respectful to Basotho as a sovereign people has the political decision on that matter been? Surely there was wisdom in constituting the court with people who may interpret the law but who would be seen to be emotionally detached from the outcome of the case but what are the implications?

Where does that leave Lesotho’s judiciary? Should Basotho know and accept that they have not yet given birth to the judicial and legal competence necessary for some cases in this Kingdom?  Perhaps it could be asked whether Lesotho will have an established Constitutional Court to interpret the constitution particularly while for politicians the constitution can mean this today and mean a different thing the following day.

Maybe for the students of law there is nothing amiss about this situation but surely to politicians who lead this country and who at one instance refer to sovereignty as their right to act not in the way others may wish to dictate, there must be.  If the political leadership is also not concerned, then it is the question of leadership poverty.  It would not be the intention of this column to undermine the intelligence of the esteemed judges but Basotho should talk about it. When the court of appeal refers to the powers of the King to appoint chief electoral officer in terms of 138(1) and the Constituency Delimitation Commission in terms of Section 66(1) sections which have long been amended one could excuse them, what else could they say while the SADC Facilitator and other highly regarded experts of Lesotho government normally do the same? Does this make lawyers in this Kingdom proud? What about politicians and the people?

Though the Court of Appeal agreed with the AG against Dr Thabane that the matter of intention to advice the King to appoint Justice Mosito was discussed in cabinet, it did not grant him what he prayed for. By upholding the decision of the Concourt that the appointment of the Court of Appeal president in terms of Section 124(1) of the Constitution was correct, the Appeal Court protected this Section against the implication contained in the prayers of the AG.

If the generality of the principle of collective responsibility was granted to AG, the essence of commandership of the senior minister would have been reduced to a lame prime minister.  The Court of Appeal also corrected the Concourt in its dilution of the prime minister’s advisory role to the King. Contrary to the Concourt assertion that the prime minister can only be compelled to consult cabinet on policy matters, the Appeal Court was firm that the law has made its own provisions not on policy matters. Though the Appeal Court has rejected the decision of the Concourt that the AG has got no legal standing to do what he has done, it has itself refused to decide.

This decision says two or three main things. First, the prime minister has the right to exercise powers bestowed to him or her by the constitution without constitutional obligation to consult cabinet. Does it, therefore, mean that the prime minister can do as he or she wishes in terms of advising the King regardless of what others say, either in a coalition of single party government?

If he or she does, such behaviour may not be punishable by law but surely will not be immune from political chastisement. This brings back the most unpopular yet clear statement of fact that governance is not law rather law and the art of its application.  Secondly, the Section 124(1) and the similar Sections of the constitution which empowers the prime minister to be one of the advisers of the King have not been amended by the generality of the principle of collective responsibility.

This means that even the meaning of Section 88 that cabinet is collectively responsible to parliament on its advice to the King remains unchanged and does not mean the removal of the prime minister from the list of advisers of the King. Thirdly, in terms of Section 98(2) (c) the AG has a legal standing to do as he has done. However, the appeal admits dangers in the manner in which the section is written and the court may want to hear debates on it on a separate case.

Laws are better done by parliament, so it should be upon parliament to amend AG Office law to give perspective to this constitutional provision. This constitutional provision should be left untouched but be elaborated in the Act of parliament.


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