‘MPs push motion because it won’t cost them’
. . . RFP lawyer hits out at 9th amendment
RELEBOHILE TSOAMOTSE
MASERU – Revolution for Prosperity (RFP)’s Puseletso Lejone will argue that Members of Parliament (MPs) who vote for a motion of no confidence face no consequences after successfully toppling governments because they keep their status and positions as MPs. This he says is because of the unconstitutionality of the 9th amendment to the constitution and its inconsistence thereof.
In the past the prime minister could call for a fresh elections when MPs moved a motion of no confidence which posed concern for MPs to have to face another round of election campaigns, MPs in the present parliament can back such a motion without endangering their positions. His lawyer, Advocate Motiea Teele KC, told the High Court (sitting as the Constitutional Court) on Wednesday this week that he will argue on behalf of Lejone that MPs no longer stand to lose their membership if a motion of no confidence was successfully passed in parliament. Now the Prime Minister cannot call for elections as the amendment now provides for change of government within parliament.
“That is part of the merits and I am will argue it at the appropriate time,” he said. Advocate Teele made the submission while motivating his argument that the High Court has jurisdiction (legal power) to entertain his client’s application. Opposition parties argue that the High Court does not have jurisdiction because matters brought to it concern parliament and are best deliberated by MPs.
Advocate Christopher Lephuthing, representing opposition in the case, is arguing that Lejone has brought non-justifiable political questions before court and it must decline jurisdiction.
He said there are no allegations that the motion of no confidence was erroneously filed or that the constitution was violated. “Absence of violation of the constitution or parliament standing orders, judicial intervention in parliament proceedings is not needed, their lordships have no business interfering,” Lephuthing submitted.
He argued that in view of the principle of separation of powers, the court cannot at the current stage of the motion of no confidence interfere, urging the judges to allow parliament to do what it is mandated to do.
“Perhaps, Mr. Leputhing, do you speak of this matter being send back to Parliament?,” Justice Tseliso Monapathi asked, to which Lephuthing replied: “Precisely my lord, it is a relief we are seeking that parliament must continue with the business that this litigation affected, being the motion of no confidence.”
Adv. Lephuthing maintained that debates about a motion of no confidence on Prime Minister are non-justifiable political points that the court should decline to discuss adding that the judiciary should not interfere with other branches of governance unless mandated by the constitution, which he said states that a motion of no confidence must be debated in parliament.
“Your lordships cannot probe reasons why Members of Parliament say the Prime Minister must go home; you should leave it to them. The court cannot interrogate a coalition agreement because MPs know how, in the appropriate forum, that is Parliament.”
Attorney Monaheng Rasekoai also spoke on behalf of the opposition and argued that Lejone’s application is a political question, which the court must decline jurisdiction on. He said the judiciary must caution itself from cases of such a nature.
“The collapse of government is a healthy exercise of power provided they happen in line with the constitution,” he said .
Rasekoai further argued that the subject matter of the dispute being tested is a constitutional amendment and the manner in which the application is structured is such that one specific provision of the constitution is being tested against the other and the court must decline jurisdiction.
In is address, Rasekoai brought to the attention of the court that the Speaker of Parliament as the head of a legislative arm of government elected not to say anything about the application that affects the institution he heads and that even the Office of the Attorney General (AG) as the custodian of the constitution chose not to say anything about an application of such a significance.
AG’s office, through its lawyer Advocate Thomas Thakalekoala, said it was unable to file papers because he, Thakalekoala, was unwell but would make addresses on law and the court agreed to his request.
For his part, Advocate Teele said the approach in determining if the court has jurisdiction is to look at the notice of motion and an affidavit. He said their argument that a constitution has a basic structure or identity that cannot be altered or destroyed beyond recognition is not a new thing.
He argued that it is proper for his client to come before court in that the High Court has unlimited jurisdiction as per High Court Act section 2a and that section 2b states any person may claim a declaratory which his client is seeking according to Prayer 2.
Lejone approached the court two weeks ago to challenge a motion of no confidence against Prime Minister Ntsokoane Matekane’s government just a few ours before the motion was due to be debated.
He asked the court to defer the motion against Matekane’s until the conclusion of the reforms process in which Parliament shall promulgate provisions to regulate the passing of vote of no confidence motion.
He also wants the court to nullify the 9th amendment to the constitution which basically removed an option a sitting Prime Minister had to call for elections when confronted by a motion of no confidence.
He says the amendment violates the basic structure of the constitution.
Lejone says when section 87(5) (a) of the constitution was amended and removed the power of the Prime Minister under the old section to opt for dissolution of parliament in the event of the vote of no confidence being passed, the process has done away with not only the Prime Minister’s rights to advise the King to dissolve the parliament but also the right of participation of the public to determine their own government.
“The right to be exercised in forming government has been given exclusively to the members of parliament who no longer to get fresh mandate but decide on a blank cheque by themselves as to who should be the Prime Minister, contrary to how the electorate had elected.”
For as long as the situation prevails, pending the promulgation of the Reforms Act and extensive amendments to the Constitution, Lejone claims that there is violation to the basic structure provided for in Section 1 of the Constitution.
He adds that there “was also a flaw in the manner in which the process leading to the complete amendment was embarked upon as section 87 of Constitution is not capable of being divorced from Section 86. Section 86 spells out the executive authority of Lesotho while Section 87 spells out how that authority can be exercised. I submit that in the premises, the basic structure of the constitution has been violated.”
In motivating that the court has jurisdiction, Adv. Teele said the subject matter in their application pertains to the Constitution and that all matters raised are subject to the interpretation of the court.
He cited several sections of the constitution including section 2 which in essence states that any law that is inconsistent with the constitution shall be void. He added that their challenge to the 9th amendment is not the 1st jurisdiction exercise of power enacting legislation challenge. He said the court is the ultimate interpreter of the constitution.
In regard to the opposition claims that the case is not a ripe issue, Adv. Teele said “the case we making is that the motion as to be done in terms of proper legislation, it’s a live issue in that there is a motion of no confidence currently filed.”
In reaction to the submission that MPs have signed a new coalition agreement and submitted a list to the speaker, Adv. Teele said it is just people talking, what matters is their vote in parliament.
