‘Thabane used prorogation to retain power’


. . . Hlaele, ’Maseribane and Rantso come out guns blazing

RELEBOHILE TSOAMOTSE                   

MASERU – Prime Minister Motsoahae Thabane and his deputy, Monyane Moleleki, prorogued parliament to avoid their removal from power, ruling All Basotho Convention (ABC) Secretary General Lebohang Hlaele has alleged. The move smacked of an indecorous motive on the part of the duo, resulting in them suspending parliament for their personal interests, he added.

Thabane’s is desperately holding on to the premier’s office to shield himself from criminal prosecution while Moleleki wants to stay in office until he qualifies for benefits as a former Deputy Prime Minister, Hlaele said. For that, the ABC secretary general says the decision to prorogue parliament is not only irrational but also unconstitutional.

“The 1st respondent seeks to use his office as a shield to criminal prosecution and as a result, his continued stay in office is aimed at shielding him prosecution. This can safely be concluded that he raised a defence before a remanding court that he cannot be prosecuted criminally irrespective of how heinous the crime of which he is charged is.”

Hlaele adds: “I aver that there is an apparent collusion on the part of the 1st and 2nd respondent to defeat accountability and to avoid legitimate constitutional processes aimed at removing them from power prematurely. The prime minister stands to lose his premiership while conveniently the Deputy Prime Minister stands to lose his statutory benefits as a former deputy.” Hlaele chronicles the damning allegations in an affidavit attached to his party’s court bid to nullify Thabane’s decision to prorogue parliament.

The ABC, Basotho National party (BNP) and five other legislators have ganged up against Thabane and Moleleki accusing them of “illegally” proroguing parliament. Reformed Congress of Lesotho (RCL) leader, Keketso Rantšo and BNP leader also have sworn affidavits to support the application. They have asked the High Court (sitting as the Constitutional Court) to review, correct and set aside Thabane’s decision to prorogue parliament and also that the court should declare as illegal, the government gazette which Thabane signed to the effect that parliament is prorogued until June 19.

According to the Legal Notice No. 21 of 2020, parliament has been prorogued with effect from March 20 until June 19 but Thabane’s coalition partners Thesele ’Maseribane and Keketso Rantšo want the court to overturn Thabane’s decision. They argue that there is no basis for Thabane to prorogue parliament as the country is at the critical stage where parliamentarians need to deliberate on important issues such as the COVID-19 pandemic that has affected the whole world.

Also, they argue that they were not properly consulted on prorogation and thereby contend the decision to prorogue parliament is unlawful. “That it be declared that the collusion of 1st and 2nd respondents leading up to the advice to prorogue parliament and actual publication of the decision in Government gazette, Legal notice no. 21 of 2020 without the unanimous consent of the other coalition partners is unconstitutional and or unlawful,” the partners say.

They also want the court to interdict Thabane from advising and recommending prorogation to King Letsie III, consequently declaring that Thabane has put the office of the King into disrepute and lowered its esteem.

Further, they are seeking that the court should declare that the prime minister does not have the constitutional authority to advise and recommend prorogation without consultations with coalition partners, cabinet as well as his own political party. According to court papers, Thabane wrote to the King on March 20 advising him to prorogue parliament due to the “prevalence of Corona Virus (Covid-19.)”

In the letter, he said due to the sensitivity of the matter, the King should be pleased to treat the matter with the urgency that it deserves, and that “Your Majesty is hereby advised to act in accordance with my advice before 9:00 PM today the 20th March, 2020.” King Letsie III did not immediately endorse the request and Thabane authorised it himself as provided for by the constitution, a move that has angered his coalition partners, prompting them to sue him.

They say Thabane was bound by law to consult with them as coalition partners, to refer to cabinet and parliament. “The prime minister has an obligation in law to consult his coalition partners, his cabinet, and most significantly the legislature on all issues having far-reaching consequences on the administration of The Kingdom of Lesotho,” read the application in part.

On top of that, the coalition partners want the court to declare that Thabane, whom they refer to as the outgoing prime minister, is no longer fit and proper to hold office and that the King should call for his dismissal so that a new prime minister can be appointed in terms of the constitution.

In his affidavit, Hlaele tells the court that Thabane did not follow procedure when he prorogued parliament for reasons that he was not mandated by cabinet to approach His Majesty. He did not give the King adequate time to consider and apply his mind to the issue proposed and also that in a situation where the King does not act on the prime minister’s advice, the prime minister is required to express his intention to do so. Hlaele argues that Legal Notice No. 21 is defective for lacking reasons on why government has been prorogued adding the reasons ought to have been featured in the gazette.

“The reasons which animated the prorogation are not featured in the gazette and for that reason the gazette is defective,” he states. He also said while Thabane proceeded to meet the King over prorogation, the prime minister had already proceeded with it because the gazette was published on March 21 despite the King’s advice that coalition partners should reconsider their reasons. “It is safe to conclude that the prime minister unilaterally endeavoured to prorogue parliament and the meeting with His Majesty the King was nothing but a façade or smokescreen aimed at paying lip service to the constitutional requirements.

“This gazette was printed quite obviously in advance because government printing hours had long passed and the meeting seeking the approval and or endorsement of His Majesty the King was done at or around 1800 hrs and adjourned at 1900 hrs.” According to Hlaele, the prime minister’s prorogation is irregular and unconstitutional for having been effected via Section 91 (3) of the constitution rather than Section 83 of the constitution. He says the purported prorogation has not taken place and that the legal instrument borne out of it is a nullity and therefore should be rejected.

“Even assuming that the purported prorogation is valid which fact is denied in the strongest terms, the outgoing prime minister was not at large to act unilaterally as he has done. “Section 91 (3) to which reliance has been placed, has been misapplied because this section envisages the scenario where he is comfortably enjoying majority support of parliament to which he has mandatory duty and constitutional obligation to report per the mentioned proviso.” Hlaele says Thabane does not enjoy majority support of legislators including some from his political party and therefore cannot prorogue parliament.

“I have officially met with the parliamentarian’s caucus of the ABC parliamentarians (more than fifty) and they reject the proposed initiative of prorogation. In the second place, he cannot report to a parliament that he has already prorogued after all. This is clear indication of the utter breach of even the provision that he purports to invoke,” he says.

He also warned that prorogation will result in the abortion of debate on critical legislation and bills, notices presented before the National Assembly speaker and president of the Senate. Prorogation, he adds, would lead to invalidation of representative democracy, as well as prevention of senators and members of the national assembly from carrying out their constitutional and political mandate.

The move he adds: “is effectively leading to a practical shutdown of parliament in circumstances which are highly suspect and which undermine the supremacy of our constitutional democracy as sanctioned by the Constitution of Lesotho.”

For his part, ’Maseribane said his party, BNP, and the RCL were never consulted by the prime minister when he decided to prorogue parliament. ’Maseribane, who is also Communications, Science and Technology minister, says he learnt about prorogation for the first time when he was called, along with Rantšo and Moleleki to the Royal Palace on March 20 at 18:00 hrs.

He says he learned that the DPM had agreed with Thabane about proroguing parliament but he immediately protested. “I staged my protestation and immediately stated: Government does not yet understand the COVID-19 to take such drastic action as proroguing parliament at this time would compromise good governance.

“I emphasised that government is working very hard to understand the nature of the virus and its ripple effects. The future role of parliament in the fight is not known. It is very unwise to close parliament so prematurely,” he says.

He also states he argued in the meeting that members of parliament are part and parcel of the fight against the pandemic and are bound to a clearly agreed channel of public communication and behaviour change in their constituencies adding to deny them a role is improper and untimely. Rantšo also said that prorogation will effectively shut down economic activity should parliament shut down on grounds of corona virus.

In her supporting affidavit, Rantšo says Thabane did not consult her in relation to prorogation adding that under normal circumstances, her ministry should have been consulted. Justice Moroke Mokhesi on Monday directed concerned parties to file all papers so that the case is heard. He eventually set April 3 as the date of hearing and will preside on the case with Justices Sakoane Sakoane and Polo Banyane.

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