By Sofonea Shale
THE allocation of 40 proportional representation seats following the National Assembly elections of 28 February 2015, came a couple of minutes after Democratic Congress leader, Prime Minister Pakalitha Mosisili, had announced the formation of a coalition government of six political parties which were later joined by another to amass 65 seats.
That announcement of the coalition government, which came before the official announcement of election results, created a sense of urgency that now justifies a public concern over the conspicuous delay in the announcement and swearing-in of its cabinet. Is Dr Mosisili unable to form cabinet? Are there internal squabbles within the newlyweds that should be resolved before moving forward? What will happen if 14 days pass without cabinet? Should Dr Mosisili tell His Majesty that he is not able to form government? So people ask.
This article seeks to contribute to the on-going public debate over these issues mainly by exploring the possible challenges and opportunities as well as providing constitutional clarity and exposing some ambiguities of the main law which may need to be revisited.
First and foremost, the time limit of 14 days that the constitution provides does not relate to the formation of government or establishment of cabinet as many people believe. The argument that government should be formed within 14 days of elections is not what the constitution provides for. The Constitution of Lesotho provides in Section 82(1) (b) that the National Assembly shall meet within 14 days after holding of elections. When it so meets, the National Assembly shall deal with the agenda that His Majesty would have stipulated in the summons. The issue of 14 days does not, therefore, include the establishment of cabinet which is provided for by a different constitutional section.
What may need to be revisited is what “holding elections” means. In the ordinary use of English language, it means Election Day. If the manner in which it is used in this part of the constitution means the same, it may have to be amended to read well with the intention of specificity in the same section. Section 89 of the National Assembly Electoral Act provides for flexibility through the extension of voting to the following day or even days. Furthermore, the Independent Electoral Commission (IEC) has powers in terms of Section 142(1) by particular or general instruction to (a) extend the time for doing any act and in (c) adapt any measure adequate to the exigencies of the situation to achieve purposes of this Act.
This means that while Election Day is fixed as one day, voting may, under certain circumstances, be extended to a period longer than a day. In fact, it explains why, in Section 106(4) of the same law, the IEC is given seven days from the date of the elections to determine and declare the results. It is this provision which is set to cater for the delays which may be caused on voting and therefore counting and determination of results. If the constitution in Section 82(1) (b) can be so precise, why can the fixity it contemplates be based on the elections date which itself is dynamic? If the general interpretation that “holding elections” here means “after announcement” is not accepted, then the constitution says what it does not mean. But where is the cabinet?
Section 87(1) of the Constitution provides that there shall be prime minister appointed by the King as advised by the Council of State. This section read together with Section 87(3) which provides that in addition to the office of the prime minister, there shall be offices of other ministers not less than seven in number including that of deputy prime minister, gives the impression that there must be a cabinet soon after there is a premier.
The words “in addition to the prime minister…” make a cabinet crucial in the consummation of the executive arm of governance which the prime minister is the head of. However, the constitution does not stipulate the time within which it would be unacceptable and therefore unconstitutional for the prime minister not to have advised the King on who he/she has appointed as ministers. In this way, while it would be logical for the prime minister not to be in office for the time more than necessary to establish cabinet, there is no time regulation on this one.
The public concern over this conspicuous delay in the announcement of cabinet is, therefore, not only politically correct but constitutionally legitimate too. Reflecting on the speed at which the coalition was announced, it would be expected that by this time ministers would be in office. So the concerns raised over the delay are well placed. Some opine that the reason for the delay is the inability to form cabinet while others surmise that since there is no express flaw of the law, Dr Mosisili should be allowed to take his time. Perhaps it should be admitted that such public debate does not occur on a clean slate, it takes place within a particular political context in which one cannot rule out partisan political biases.
Leading a coalition of seven political parties is not by any standards an easy task. It may, therefore, take longer to consolidate cabinet than would be the case in a single party government.
When the Popular Front for Democracy joined the coalition fray, it made a very big show. Besides accepting the original agreement of the six parties, it added its flavour to the dish.
It demanded a programme which would form part of the agreement and it was accepted. Logically, for seven parties to agree on a programme as a signed agreement before starting work as government may not be as quick.
Previously, there used to be two categories of swearing-in ceremonies. The first comprised members of the National Assembly and the Senate which later meets. Since seniority of cabinet members is reflected in the sequence in which they take their oath, it might be that this time Dr Mosisili intends to do one set so that some ministers who would ordinarily be senior in terms of experience, responsibility, capability etc. are not relegated to the lower level simply because they are senators who took an oath later than their colleagues.
To be a member of the Senate, one needs to first be appointed by the King acting on the advice of the council. However the council may not sit and advice the King on who to appoint to the Senate unless the National Assembly would have first sat after elections. When everything is said and done, the question left begging to Dr Mosisili is “But Ntate, why is it taking you so long to form cabinet?”
