TRC calls for NACOSEC’s validation of existence

KANANELO BOLOETSE

MASERU – The Transformation Resource Centre (TRC) has ramped up pressure on the Prime Minister Dr Moeketsi Majoro to accelerate formulation of a statute that will validate existence of the controversial National Covid-19 Secretariat (NACOSEC).

“It is of grave importance that the NACOSEC be institutionalized by formulating a law that bestows upon it, authority to plan and implement its strategies to combat COVID-19 rather than relegating its role to being advisory,” TRC said in an open letter to Majoro yesterday.

It added that: “In addition, the law should also prescribe autonomy in order to enable the Ministry of Health to delegate COVID-19 related issues to NACOSEC.”

NACOSEC was established by legal notice no.61of 2020 issued by the minister in the prime minister’s office, Kemiso Mosenene, on June 30, 2020. Mosenene said he acted in terms of section 9(d) of the Disaster Management Act of 1997.

According to the disaster management act, upon the declaration of a state of disaster and for its duration, prime minister has power to establish a National Disaster Relief Task Force consisting of ministers directly involved with that disaster. The task force’s responsibilities, according to Section 9(d) cited by Mosenene, include initiating the creation of appropriate institutional structures to support the disaster relief plans.

At the time Mosenene issued a legal notice establishing NACOSEC, there was no state of disaster declared by prime minister.

What prime minister had declared on April 29, 2020, was a Covid-19 Disaster-Induced State of Emergency for a period of six months to October 28, 2020.

Even this declaration, according to constitutional law expert advocate Tekane Maqakachane, was not consistent with the constitution because prime minister was advised by the board of the Disaster Management Authority (DMA) not the council of state.

For this reason, and others, NACOSEC’s legal standing has been questioned from several quarters within and outside the government.

On august 10, 2020, director general of Directorate on Corruption and Economic Offences, Mahlomola Manyokole, wrote to Majoro advising him that “the NACOSEC in its current form be dissolved and all its functions be absorbed by the DMA which has adequate legal provisions to cater for Covid-19”.

Manyokele’s advice was inspired by the external legal opinion he had received from Maqakachane.

“The establishment of National Covid-19 Secretariat (NACOSEC) Notice No.61 of 2020, as subsidiary legislation, is out of step with the Disaster Management Act of 1997. It contravenes the legality principle,” Maqakachane noted in his legal opinion.

“Being inconsistent with the Disaster Management Act of 1997, the Legal Notice establishing NACOSEC is invalid, null and void. The NACOSEC has no legal existence or legal status,” he added.

“NACOSEC, without any legal existence or legal status cannot be subject of any legal power. It has no power both in fact and in law. Legal existence (legal status) is a precondition for legal subjectivity and exercise of any legal power,” Maqakachane further said.

However, Prime Minister Majoro has said he had reservations about Maqakachane’s legal opinion because it expressed the view that government’s approach was illegal without rendering a proper legal mechanism that would mitigate an evidently challenging phase of the coronavirus outbreak.

“I then sourced legal advice from the officials of the government as is my obligation and or right to do so and efforts were duly made to regularize the institution of NACOSEC,” he said.

He maintains that there is no finding by a court of law to the effect that NACOSEC is illegal. Referring to a case in which one David Mochochoko sued government over the legality of National Emergency Command Centre (NECC) in June last year, he has said there was only an attempt to seek that order and it was dismissed by the High Court.

Mochochoko wanted the committee, group, workshop, structure or body referred to as the command center be disbanded.

He also wanted government to be ordered to address, deal with, manage and or administer coronavirus pandemic and all related issues in terms of the provisions of the disaster management act.

He further wanted that the decision by then Prime Minister Thomas Motsoahae Thabane, to establish command center be declared unlawful as it was not made on the basis of an act of parliament or constitution. When handing down the judgement, High Court judge justice Mokhesi, said it was clear that when parliament enacted the disaster management act, it envisaged a body which will be vested with exclusive powers to manage disasters and not any other body created on an ad hoc basis.

“The disaster under section 2 of the act defined cover natural events like the Covid-19 pandemic. Clearly when government established NECC it circumvented the established mechanics of dealing with disaster and which has been exclusively vested with such a responsibility. Without a doubt, government is in the wrong,” Mokhesi said.

He however dismissed the case with costs saying Mochochoko was not entitled or did not have locus standi to sue.

In the letter to Majoro yesterday, TRC said enactment of NACOSEC Act must be prioritized “as it is the frontline institution endowed with powers to monitor and coordinate the fight against Covid-19”.