MASERU – A sitting prime minister leading a coalition government is bound by law to consult partners in effecting cabinet decisions, a constitutional lawyer says. Contrary to popular belief that coalition agreements are not binding, constitutional law lecturer at the National University of Lesotho (NUL), Advocate Tekane Maqakachane, says coalition agreements are recognized by the Constitution in so far as they nominate a candidate for consideration as prime minister.
This, according to the legal expert, stems from the fact that a coalition agreement is a legal document recognised by the constitution and is, therefore, binding to the parties – and that the PM’s decisions are, as a result, subject to consultations with coalition partners. It is also due to the fact that coalition politics revolve around consultations and consensus and that if consultations are not made, the leader risks losing majority support which may result in the collapse of the government.
“As a legal document recognised by the constitution, a coalition agreement is enforceable before a court of law,” the lawyer said. “A coalition agreement nominates a name to be submitted to the Council of State for consideration in the appointment of the prime minister,” he said. For this, Maqakachane says the coalition agreement attains a constitutional status and is, therefore, enforceable before the courts of law.
The foundation document by which government is formed, the coalition agreement, he said, becomes legal for prescribing not only the terms and conditions but also the conduct of government. He adds the agreement becomes crucial in a situation where elections do not bring an outright winner and that, as a result, political parties enter into an agreement meant to nominate the leader of the coalition for the purpose of leading the government. While a coalition government does not take away powers of a sitting prime minister, he said major decisions will always be subject to consultations and consensus.
Maqakachane told Public Eye in an interview this week that by being enforceable before the court of law, coalition parties are at liberty to approach the courts if an agreement has been breeched or when they find themselves in a situation where they have not been consulted. Past coalition agreements have not been enforceable because parties have chosen to politically address their differences instead of approaching the courts of law. Maqakachane is of the opinion that coalition partners can go to court to allege contravention of the contract.
“It forms the basis of coalition government and all partners have to conduct themselves according to the agreement,” he said. He also adds that the agreement is used to govern relations between parties while also serving as judgment by which citizens can be able to demand accountability from government or parties to the agreement. While the court will consider circumstances and other factors, he says, the agreement itself remains enforceable. “Save for social agreements, in Lesotho, any agreement which is not illegal or contrary to good morals is enforceable before the courts.
“For the very fact that a coalition agreement gives rise to a leader of a coalition or name sent to the Council of State for consideration, it attains a Constitutional status,” Maqakachane said. Lesotho first saw a coalition government after 2012 election when the winner Democratic Congress (DC) failed to attain majority support. Subsequently, a coalition government was as a result formed by the All Basotho Convention (ABC), Lesotho Congress for Democracy (LCD), the Basotho National Party (BNP), as well as the Reformed Congress of Lesotho (RCL).
Former Prime Minister Motsoahae Thabane, whose coalition government recently collapsed in parliament, was elected as the leader of the 2012 coalition government and became prime minister. However, his government (2012) collapsed after he was accused of acting unilaterally without to consulting coalition partners. His then deputy, Mothetjoa Metsing, accused him of making decisions to the exclusion of his coalition partners. In effecting the decisions without consulting partners, Metsing said Thabane “has cancelled and rendered nugatory the strength and existence of the coalition by refusing to observe and adhere to the good faith and democratic principles.”
The collapse of the government brought about fresh elections, and a second coalition saw a new seven party coalition government led by former Prime Minister Pakalitha Mosisili in 2015. His coalition was, however, rocked by his DC’s internal politics leading to the collapse of government. His then deputy, Monyane Moleleki, broke to form a new party Alliance of Democrats (AD) along with some Members of Parliament (MPs) from the same party resulting in Mosisili losing a motion of no confidence in parliament and taking the country to early elections in 2017.
After the elections, Moleleki joined an alliance of the ABC, BNP and the RCL, forming a new quartet government that was Christened 4×4. Their government recently collapsed in parliament after the partners complained of not being consulted in matters of governance by the senior partner, ABC. Thabane resolved to prorogue parliament in March citing the Coronavirus outbreak as the reason for his decision, but his coalition partners argued they were not consulted. Thabane’s own party, the ABC and the BNP leader, Chief Thesele ’Maseribane, had to approach the courts to cancel the prorogation.
They argued there had not been consensus to prorogue parliament and that they were against the move by the prime minister to suspend parliament and that he acted unilaterally in proroguing parliament without consulting them and without obtaining permission from King Letsie III. While the prorogation was cancelled by the Constitutional Court, the court said, however that the prime minister was not bound to consult his coalition partners in matters of prorogation saying he was not obliged to consult in law.
The court said “failure to consult does not attract a legal risk but a political risk of ultimate collapse of government.” The Constitutional Court had, however, found Thabane had acted irrationally when he suspended parliament, in that he didn’t follow due processes – rendering the prorogation null and void as the applicants argued the prime minister failed to adhere to all the provisions of Section 91(3) of the Constitution of Lesotho which require for him to report to parliament after he has acted without the consent of the King.
Section 91(3) of the constitution states: “Where the King is required by the constitution to do any act in accordance with the advice of any person or authority other than the Council of State, and the Prime Minister is satisfied that the King has not done that act, the Prime Minister may inform the King that it is the intention of the Prime Minister to do that act himself after the expiration of that period to be specified by the Prime Minister, and if at the expiration of that period the King has not done that act, the Prime Minister may do that act himself and shall, at the earliest opportunity thereafter, report the matter to parliament; and any act so done by the Prime Minster shall be deemed to have been done by the King and to be his act.”
The prime minister’s legal team argued he acted within his constitutional powers when he prorogued parliament, citing the same constitutional clause as granting Thabane to act on his own if the King did not act on his advice. The three-member Constitutional Court bench was made up of Justices Sakoane Sakoane (presiding judge), Moroke Mokhesi and Polo Banyane.