Way out for cornered Thabane

KANANELO BOLOETSE

MASERU – Beleaguered Prime Minister Thomas Thabane can still recommend a dissolution of parliament to the King and force the country to hold elections, Public Eye has established.

To secure dissolution of parliament, Thabane would only need to convince the council of state that government cannot carry on without a dissolution and that a dissolution will be in the best interests of the country.

But the clock is ticking.

The council of state is an independent body established under section 95 of the Constitution to assist the King in the discharge of his functions and to exercise such other functions as are conferred by the constitution.

Thabane is expected to step down as prime minister before end of July and the finance minister, Dr Moeketsi Majoro, has been nominated by a caucus of the ruling All Basotho Convention (ABC) legislators to replace him.

However, some dissenting ABC MPs have maintained that the job of prime minister is way above Majoro’s pay grade.

Thabane has also indicated that he will not be pushed out of office and will only leave when he wants to and is reportedly trying to negotiate his departure.

His term as prime minister ends with national elections scheduled for 2022, but the National Executive Committee (NEC) of ABC has asked him to resign with immediate effect.

Thabane was not elected prime minister by the ABC NEC and can therefore not be legally removed by that committee.

He can only be removed by members of the national assembly through a vote of no confidence.

His refusal to resign plays right into the hands of the main opposition Democratic Congress (DC) upon whose anticipated no confidence motion disgruntled ABC MPs might have to ride.

The noose tightened on Thabane this week as the senate passed a constitutional amendment, barring him from advising the King to dissolve parliament and call fresh elections if he loses a vote of no confidence.

The bill, which was first passed by the national assembly – the lower house of parliament – earlier this year, was endorsed by the senate on Tuesday this week and only awaits Royal assent to become law.

When enacted, the amendment proposed by leader of the Popular Front for Democracy (PFD) Lekhetho Rakuoane and seconded by the Lesotho Congress for Democracy (LCD) leader Mothetjoa Metsing, will formally outlaw a prime minister’s unilateral advice for a dissolution.

Public Eye has however established that Thabane still has time to recommend for a dissolution of parliament to preempt his detractors’ planned efforts to remove him through a vote of no confidence.

The constitution states that the King may at any time, acting in accordance with the advice of the prime minister, prorogue or dissolve Parliament.

However, the constitution further states that if the prime minister “recommends a dissolution” and the King considers that government could carry on without a dissolution and that a dissolution would not be in the interests of the country, he may, acting in accordance with the advice of the council of state, refuse to dissolve parliament.

“The prime minister would have acted constitutionally if he tenders his recommendation for a dissolution to the King before the constitutional amendment bill is enacted and the King would be obliged to seek advice of the council of state,” Rakuoane said on Thursday this week.

He indicated that if the council of state approved prime minister’s recommendation, it would not be plausible to approach a court to argue that council’s decision to endorse Thabane’s recommendation was irrational.

“It would be hardly rational for the council of state to agree to dissolve parliament under the current circumstances. Members of the state of council are not crazy; they know that their decision has to be in the interests of the country,” he said.

Rakuoane added that the members of the council of state “know that the country has to embark on the national reforms process”.

“They also know that IEC (Independent Electoral Commission) does not have commissioners. They will not endorse prime minister’s recommendation for a dissolution. The people who want prime minister to recommend for a dissolution of parliament are fools who do not want have the best interests of this country at heart,” he said.

Section 66 of the fourth amendment to the Constitution Act of 2001, provides that the IEC should consist of a chairman and two members, “who shall be appointed by the King acting in accordance with the advice of the Council of State”.

“The members of the council of state know that they were interdicted by the courts from advising the King to appoint new IEC commissioners. They know that dissolution of parliament will not be in the best interests of the country. They know that government can be carried on without dissolution,” Rakuoane said.

According to the constitution, if the parliament is dissolved, elections to the national assembly should be held “at such time within three months after dissolution” as the King may appoint.

The King has no choice in the matter and failure to hold elections within three months could result in a constitutional crisis.

Elections to the national assembly are conducted by the IEC.

The Council of State consists of:

• The Prime Minister;
• The Speaker of the National Assembly;
• Two judges or former judges of the High Court or Court of Appeal appointed by the King on the advice of the Chief Justice;
• The Attorney-General;
• The Commander of the Defence Force;
• The Commissioner of Police;
• A Principal Chief who is nominated by the College of Chiefs;
• Two members of the National Assembly appointed by the Speaker from among the members of the opposition party or parties. In making this appointment the Speaker appoints the leader of the opposition and the leader of the opposition party or coalition of parties having the next greatest numerical strength. If there is only one opposition party, the speaker appoints another member of that party;
• Not more than three persons who shall be appointed by the King on the advice of the Prime Minister, by virtue of their special expertise, skill or experience.