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Academic argue amendment will create a sitting duck premier

BONGIWE ZIHLANGU

MASERU – The overwhelming majority support of the 9th Amendment to the Constitution Bill by both houses of Lesotho’s bicameral parliament, resulting in the smooth passage of the draft law, poses challenges for Lesotho’s premiers as it limits their constitutional powers and renders them vulnerable to MPs, Public Eye has learnt.

According to an academic paper opposing the amendment, which now awaits royal ascent, the proposed changes to the constitution will result in a “weak and vulnerable” Prime Minister, who will be at the mercy of “unchecked members” who can comfortably sleep on the job for five years without being “worried about any sanction from the electorate”.

The paper, which interrogates the spirit of the amendment, was prepared by Moorosi Moshoeshoe and Lesiamo Molapo (both prominent members of the Basotho National Party) and Ts’olo Makhele, with the assistance of a consultant who prefers to remain anonymous.

It is meant to strengthen the case of senators who were strongly opposing the 9th Amendment to the Constitution such as Principal Chiefs of Qacha’s Nek, Tsikoane, Makhoakhoeng, Matelile and Butha-Buthe, as well a few political appointees.

The paper argues that removing a premier in Lesotho should not be done without safeguards such as a two-thirds majority vote in favour of his/her removal, instead of relying on a simple majority as that backs the incumbent to a corner; and that instead the amendment should have been subjected to a referendum which facilitates for direct public participation.

Lesotho is currently experiencing yet another phase of its perennial political challenges, with the most recent being the tussle to curb the powers of the prime minister and to ultimately remove him from power, if need be. Various commentators who have somehow influenced the narrative agitated for the curbing of the prime minister’s powers, by blocking the PM from asking the King to dissolve parliament. The amendment will clip the powers of the Prime Minister in that it prevents him from advising His Majesty the King to dissolve parliament and call snap elections in the event that he loses a no-confidence vote in parliament.

Lesotho’s constitution provides two avenues for the removal of the prime minister, and each avenue has conditions that should be satisfied namely by resignation of the prime minister or a vote of no confidence passed on the prime minister in the National Assembly.

However, prominent ruling ABC politician, Senator Lebohang Hlaele, and influential chiefs like Principal Chief of Matsieng Seeiso Bereng Seeiso (younger brother to His Majesty King Letsie III), Principal Chief of Thaba-Bosiu Khoabane Theko, Principal Chief of Leribe Joel Mots’oene, and Principal Chief of Likhoele Lerotholi Seeiso, strongly advocated the draft law to be passed by the Upper House.

The amendment is the brainchild of the Popular Front for Democracy (PFD) leader Adv. Lekhetho Rakuoane, supported by Lesotho Congress for Democracy (LCD) leader Mothetjoa Metsing, who is former Deputy Prime Minister under Prime Minister Pakalitha Mosisili. Rakuoane’s major concern was the ease with which Lesotho’s prime ministers could plunge the country into unnecessary election costs by prematurely dissolving parliament when they lost their political battles.

In 2006 following Thabane’s formation of the All Basotho Convention (ABC) in October of the same year, having defected with 17 MPs of the then ruling LCD, former Premier Mosisili immediately dissolved parliament and called a snap election which was held on February 17, 2007. In a similar breath, an embattled Thabane in 2014 during his first tenure as Prime Minister, prorogued parliament for 12 months only to later dissolve parliament and call elections in early 2015 to escape a no-confidence vote in parliament.

Following the 2015 polls, Mosisili bounced back as premier of a seven-party coalition government, only for him to dissolve parliament and call fresh elections two years later in 2017, following the humiliating loss of a no-confidence vote in parliament, precipitating elections that resulted in the current four-party coalition government.   The amendment received the astounding support of 94 MPs earlier this year, leading to Prime Minister Thomas Thabane’s prorogation of parliament, a move which was two weeks ago declared null and void by the Constitutional Court.

Following the resumption of parliament, the Bill was tabled in the 33-member Senate which is the Upper House comprising mainly of Principal Chiefs and political appointees, and garnered the support of 24 members with four voting against it, while one abstained. Stating their case, the trio argues that blocking the prime minister to reach the King would “create a very difficult situation to our democracy”, in the sense that it would create a timid prime minister who would “be a sitting duck for manipulation by forces within the parliament”.

“It will also create a possible unending change of prime ministers whenever there is a misunderstanding between the coalition partners or any government of the day,” the trio argues. They further submit the amendment places the prime minister at the mercy of MPs who will be sitting comfortably in parliament assured of serving a constitutionally prescribed five-year term “while the PM is not assured similar comfort”.

“Voters would not be able to flush out one (or those MP’s) who may be perceived as a nuisance in parliament or when the public is not happy with their performance, hence voters would have to wait for five years to decide. This is called disenfranchisement of the public (it is not democracy),” they assert. Additionally, the three note while the PM panics at every turn the MPs, on the other hand, will pay no attention to poor performance since there will not be any threat to their jobs to force them to be more accountable.

“MPs would feel entitled to a five-year parliament tenure, hence they would not feel compelled to improve their performance of service delivery to the public but to fight for executive positions,” they maintain. They again submit that “any external forces with enough influence could destabilise the government and Lesotho may begin to see its independence compromised”.

The legislature, they assert, will also be immune to checks and balances which would breed a culture of incompetence. “Lack of adequate checks and balances would result in incompetent legislature and promotion of corruption in the executive arm of the government beyond what Lesotho is experiencing now,” they argue. “Again, voters and members of the public will have no trust in our democracy and leaders at large (and no trust in the parliament and senate).”

When the amendment comes into effect, they note, Senators (especially the chiefs) would be seen as kowtowing to politicians’ whims hence they would “be defined as corrupt lackeys of the politicians who use their positions to meet their needs, not those of the public”. This, they add, will mean that “the king will be put in a tough situation as the public would judge him on how he relates with traditional leaders in whom the public had no trust.” The move could lead to voter apathy, they argue, as subsequent elections will have very low turn-out, below what Lesotho is experiencing now.

“The King will not be protected, even though the agitators reason that he will not be reached by the prime minister with trivial political problems. With passage to the king blocked, both the prime minister and the king will be isolated and locked in their individual corners unable to discuss issues relating to elections,” they claim. “This means the King will not intervene as both his hands and feet will be constitutionally bound. The State Council will also be deprived of its duties to advise the king on such related duties.”

The trio instead call for the passage (known in vernacular as Kotopo) allowing the Prime Minister to advise on dissolution of parliament when he or she loses a no-confidence vote “to be left as is”. Instead, they advocate for the PM to be at least afforded the opportunity to resign thus allowing for a new premier to assume office, or lobby the Council of State to have the parliament dissolved and fresh elections called.

“Leave the “kotopo” open, don’t even touch it! The way to relieve the prime minister of his powers is to lobby the National Assembly to press ahead with the intended vote of no confidence and to lobby the State Council,” they submit.

“This is because passing the vote of no confidence in the prime minister will result in binary options: prime minister tenders his resignation as stated in the constitution thus relieving Basotho, hence, there will be no need for elections as a new prime minister will be chosen according to the stipulations of the constitution. Or the prime minister presents his request to the king to dissolve the parliament and call the elections.”

They therefore urge that instead of creating the passage, the Council of State which is the King’s advisory, be lobbied to reject the elections because “the prime minister presents his request to the King.”

“The constitution clearly states that the King can only decide after consulting with the Council of State, hence, council’s decision is final because the King is part of this body, as is the prime minister,” they submit. “It therefore makes sense to lobby the members of the State Council to reject the elections request by the prime minister. Hence, technically once the state council and King have rejected the prime minister’s demand/request, he will cease to be a prime minister. And note, the Commander of the Army or Police Commissioner may immediately remove their security.”

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