MASERU – Government lawyers have petitioned the Court of Appeal to urgently hear an appeal against the High Court (sitting as the Constitutional Court) judgment that recently nullified all business concluded by parliament following its recall by King Letsie III on August 23. The recall was a result of the State of Emergency declared by Prime Minister Moeketsi Majoro and gazetted on August 16. The recall led to enactment of several laws including the Eleventh Amendment to the Constitution and National Assembly Electoral (Amendment) Bill, 2022 which were later nullified by the court.
The state of emergency declaration and the subsequent recall of parliament were subjected to a constitutional challenge by journalist and activist, Kananelo Boloetse, whom lawyer, Lintle Tuke, joined by launching a similar application to challenge the alleged state of emergency and the King’s recall of the parliament. They argued that provisions of the law were flouted when the state of emergency was declared and that the subsequent recall of parliament so that the two bills, believed to be a solution to the challenges or the political instability faced by the country can be passed, were illegal.
In an affidavit accompanying his application, 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 the subsequent recall of parliament. He said the state of emergency declaration was deployed so as to remedy failure by parliament to do its work.
Tuke included a prayer that the business already concluded by parliament as a result of the recall of parliament be nullified if the court rules in his favour. The two applications were consolidated and heard on August 25 with the court delivering the judgment on Monday this week. The court agreed with the complainants that failure to pass the two bills parliament was recalled to pass does not constitute an emergency and thereby declared the state of emergency unlawful.
The court also ruled that the King was ill advised when he recalled parliament to “complete enactment of Eleventh Amendment to the constitution (Omnibus Bill) and the National Assembly Electoral (Amendment) Bill, 2022.” The court further ruled that a recalled parliament has no constitutional authority to debate and pass the two bills. Government disagrees with the judgment and has appealed it on at least four grounds: that the High Court of Lesotho erred and misdirected itself when it concluded that Boloetsoe and Tuke had the legal right to challenge the state of emergency.
That the court erred and misdirected itself in interrogating the merits that informed the declaration of the state of emergency. “The findings of the court a quo attracted judicial overreach and consequent violation of the sacrosanct separation of powers doctrine.” Government also believes that the court should have declined jurisdiction on the matter saying it had no jurisdiction to interrogate and probe polycentric issues that informed the recall of parliament.
Further that the court erred and misdirected itself in failing to weigh public interest dynamics against the alleged breaches of the constitution. Now, Attorney Monaheng Rasekoai, who represents government in the matter, has written to the Court of Appeal Deputy Registrar, Advocate Realeboha Makamane, requesting an urgent determination/hearing of their appeal.
“We author this letter pursuant to the provisions of Rule 3 ® (8) of Court of Appeal (Amendment Rules) legal notice No. 39 of 2020 which reads as thus – where a party wishes an appeal to be heard urgently, a letter shall be written to the Registrar of the court supported by an affidavit as to the urgency setting out reasons why the appeal should be heard urgently….”
In the affidavit, Attorney Moeketsi Rampai brings to the attention of the Deputy Registrar that an appeal was noted on September 13 against the High Court decision adding that their appeal is of grave national importance and must be concluded prior to October 7, 2022, national elections. The impact of the court’s decisions, he states, weighs heavily on the progressive development of the country and should thereby be heard as soon as possible.
“I must hasten to disclose to the court that this litigation is the most important one and the record and notice of appeal and grounds were promptly filed in order to avert the potential harm of a delayed appeal.” He adds: “I respectfully aver also that the balance of convenience favors the grant of this application regard being heard to the circumstances and the issues raised in this litigation. There is no prejudice which respondents might suffer in case this application is granted as prayed.”