. . . Law Society wants some laws nullified
MASERU – Controversy surrounding Prime Minister Moeketsi Majoro’s recall of the 10th parliament to finalize reforms-related legislation deepened this week when the Law Society of Lesotho sought to nullify all Bills (now laws) passed during the period of recall.
The lawyers’ body has petitioned the high court (sitting as the Constitutional Court) to urgently nullify the 10th Amendment to the Constitution (previously referred to as the Eleventh Amendment to the Constitution/Omnibus Bill) as signed into law by King Letsie III.
Contained amendments give effect and legalised recommendations by the National Reforms Authority (NRA), an institution which was established to coordinate, lead and manage the reforms process in the implementation of resolutions and decisions of Reforms Plenary II.
Two Bills, the Eleventh Amendment to the Constitution Bill 2022 and the equally important National Assembly Electoral (Amendment) Bill 2022, prompted Prime Minister Majoro to declare a State of Emergency to pave way for the recall of parliament which has since been resolved in a move criticised by activists and lawyers.
The recall came after the two Houses could not pass the bills before their tenure ended on July 14, 2022 and their subsequent dissolution by the king. Development partners also exerted pressure on the government to ensure that the bills are signed into law before the upcoming October 7 general elections.
In his declaration of the state of emergency, the Premier said failure to pass the two bills meant continuation of unchecked politicisation of the public service and the security agencies, loopholes in the constitution, formation of coalition governments, unregulated floor crossing in parliament and inadequate regulation of political parties which all have been identified as factors undermining political instability, justice and peace in the country.
It was for this reason that parliament was recalled and the recall fixed only for five days – from August 24 until 29. However, it appears that parliament not only passed the two bills when recalled but also that five other bills were signed into law including an amendment to Specified Offices Defined Contribution Pension Fund Act of 2011.
It has also been widely reported that Members of Parliament (MPs) agreed that they are not only entitled to pension after serving for five years in Parliament but that they should receive half of what they were earning (salaries) while on pension (50 percent credit percentage).
Public Officers Defined Contribution Pension Fund Act of 2008 was also amended to provide for public officers being entitled to 50 percent lumpsum payment upon retirement from the public service. The Harmonization of the Rights of Customary Widows with Legal Capacity of Married Persons Act of 2022 was also passed.
It seeks to harmonise the rights of customary widows with the rights of other women under Legal Capacity of Married Persons Act of 2006. On top of that, Metolong Authority (Amendment) Act 2002 was also signed into law.
The Law Society wants all these five laws nullified for their inconsistence with the State Emergency. The organisation’s President, Advocate Tekane Maqakachane, says the recalled 10th parliament went beyond its recall purpose when it passed these other Acts.
He also states that the Acts have nothing to do with alleged state of emergency. “It is clear from the content of the afore mentioned Acts that they have absolutely nothing to do with the alleged public emergency nor do they form part of the reasons script for the recall of the 10th parliament.”
According to Maqakachane, the Acts were enacted in violation of the constitutional doctrine of State necessity which he says requires measures taken to aver the alleged public emergency to be temporary and warranted by the public emergency.
He contends that the Bills “leading to these Acts collapsed, fell off and lapsed when the 10th Parliament was dissolved on July 13 and there was nothing to resuscitate and to pass them in relation to the subsequent recall.”
Maqakachane has called on the court to urgently determine their application saying the life of the nation is likely to be threatened and structured in the manner the Amendment has so prescribed, if not nullified.
This, he says, will have “far-reaching decisions including judicial decisions being made on the erroneous view that the Amendment Act of 2022 is valid law when that is not the case.”
In the affidavit accompanying their application, Advocate Maqakacahane tells the court that the organisation he leads (Law Society) resolved to launch the present application in its meeting on September 5 after realising that there are issues of great public interest and that “the organisation of the present litigation is the only way the constitutionality of the present acts can be brought to constitutional review and auditing of legality by the Honourable Court.”
While the Law Society agrees that it is well within the Prime Minister’s right to declare a state of emergency and parliament to be recalled in the manner it was and that the constitution provides for such, the lawyers body argues that the constitution does not allow or permit parliament to effect changes that effectively redesign the constitution.
“I aver that the constitution does not permit parliament to effect changes or reforms of the constitution, to remake or redesign the constitution through the use of emergency powers. I aver that the constitutional remaking and redesigning reposes in the constituent authority of and exercise of popular sovereignty by the people of Lesotho,” Maqakachane states.
He adds that “the role of parliament in the constitutional remaking and redesign is limited to ensuring that the enacted new constitution mirrors the views, consensus and aspirations of the collectivity of the people of Lesotho and to enact laws that express will of the people thus expressed.”
He insists that parliament cannot do and achieve through the use of emergency powers what has nothing to do with public emergency and could have been done or achieved during the ordinary life and tenure of parliament.
Maqakachane cites Section 85 (3) of the constitution which states that “a bill that alters specified sections and parts of the constitution of Lesotho shall not be submitted to the King for his assent unless that bill has been submitted to the vote of electors and the majority of electors voting have approved the bill.”
He argues that government was pressured to pass the 11th amendment to the constitution by the international community and development partners, threatening and intimidating Lesotho.
Advocate Maqakchane’s led organisation’s litigation is not the only one challenging the manner in which reforms related legislation have been dealt with. The Constitutional Court has reserved judgment in a case where journalist and activist, Kananelo Boloetse challenged the King’s recall of the parliament.
Boloetse argued that there was no disaster threatening citizens from enjoying their lives or threatening the general continuance of life in Lesotho when the state of emergency was declared and subsequent recall of parliament.
He was joined by Law Society Vice President’s, Lintle Tuke, who argued that provisions of the law were flouted when the state of emergency was declared and parliament recalled.
Media Institute of Southern Africa (MISA) Lesotho also petitioned the Constitutional Court to nullify sittings of parliament wherein the omnibus bill was passed. MISA also argues that the state of emergency violated the constitution.