‘You cannot have your cake and eat it’


. . . Moleleki responds to Puseletso’s threat on PR MPs


MASERU – Former deputy prime minister and Alliance of Democrats (AD) proportional representation Member of Parliament Monyane Moleleki has told Revolution for Prosperity (RFP) Lejone Puseletso that he cannot have his cake and eat it. Through a letter written by his lawyers Moleleki responds to Puseletso’s threat to ask the court to ensure MPs on PR seats who vote in support of the motion of no confidence in Prime Minister Matekane should forfeit their positions in the National Assembly since a PR seat is a privilege.

Puseletso cannot make such a demand against PR MPs who choose to cross the floor in Parliament while he on the other hand he has asked the court to defer reforms related legislation(s) until the case in which he is challenging the constitutionality of the 9th amendment has been decided, Moleleki says in the letter. Puseletso petitioned the High Court (sitting as the Constitutional Court) a month ago    to defer a motion of confidence against Prime Minister Ntsokoane Matekane until the conclusion of the reforms process in which Parliament shall promulgate provisions to regulate the passing of a vote of no confidence.

That case remains pending before the court but last week Puseletso threatened to petition courts to declare that Moleleki and Movement for Economic Change (MEC) Motlalepula Khahloe should cease to be MPs for agreeing to vote with opposition when the motion of no confidence isdecidedin Parliament. By agreeing to vote with opposition, Puseletso said the two MPs have effectively crossed the floor in violation of the National Assembly Act.

Section 188 (3) of the National Assembly Act No. 14 of 2011 provides that a member of the National Assembly allocated a seat by proportional representation shall vacate the seat if the member: resigns as a member, resigns from the political party under which the member was elected, crosses the floor, dies or becomes disqualified from being a member under the Act. Moleleki and Khahloe have not formally crossed the floor in Parliament but both appended their signatures to a list of MPs in support of a proposed new government that is to be headed by Democratic Congress (DC) leader Mathibeli Mokhothu.

The list was submitted to the National Assembly speaker, Tlohang Sekhamane and also attached to an affidavit responding to Puseletso’s court application to block the no confidence motion against Matekane. By signing their names on the list, Puseletso said they have crossed the floor in violation of the National Assembly Act and threatened to petition the court to declare that they should no longer be MPs but Moleleki says the laws Puseletso wants invoked against them is a matter before the court as per his constitutional application.

Puseletso had also told both Moleleki and Khahloe that he would assume that they have crossed the floor if they vote with opposition and refuse to withdraw their names from the said list so he would petition the court to declare that they are no longer Members of Parliament and the next names on their parties’ Proportional Representation (PR) be sworn in as MPs in their places. Moleleki told Lejone that the law on floor crossing is part of the National Reforms Process that he Lejone has challenged and asked the court to interfere with.

He tells Puseletso in a letter that the document signed “is a contract res inter alios acta and it is part of proceedings in the pending litigation before the High Court to which Alliance of Democrats is the respondent.”

The former Deputy Prime Minister says his disqualification from Parliament does not happen automatically as alleged by Puseletso, especially in the circumstances that he pleaded that a motion of no confidence be stalled while the court determines his case. 

“The disqualification does not follow automatically in the strict sense of the word, particularly now that the country is undergoing the reforms process” which has been stalled after the vote of no confidence motion was suspended “by the same Hon Puseletso”.

Molelekis lawyers wrote in the letter that Puseletso should raise his concerns that their client will vote with opposition when Parliament finally gets to debate the motion of no confidence. “At the moment, it is premature, presumptuous and telescopic to conclude that our client is going to vote with opposition,” Advocate Christopher Lephuthing said. He added: “It is unfortunate that our client is being asked to withdraw his name from a contract by Hon Lejone Puseletso. He is before the High Court expressing the view that a vote of no confidence be deferred until the reforms process on the constitution are completed in order to avoid constitutional crisis resulting from the enforcement of 9th amendment to the constitution.

“It is a very strong step for the High Court to decide because he is protesting the dismissal of the Prime Minister. Our client is patiently waiting the outcome of the case, he is told by the same Hon Puseletso who is challenging the laws of this country.” An application to declare that Moleleki will no longer be an MP, Lephuthing said, would be an abuse of court processes adding that his client cannot be forced to vote with government. “We categorically advise that our client cannot be forced to bind himself into voting with government. He will freely and in full knowledge of the findings of the High Court in the expected judgment vote at the material time. It is his secret how he is going to vote in due course. The voting situation is so complicated and is subject to waiver by the parties to the pending proceedings and thereby affected.”

In his letter Puseletso insisted that Moleleki and Khahloe violated provisions of the National Assembly Electoral Act of 2011 when they attached their signatures in support of opposition while their parties are part of government. He refereed them to Section 188 (3) of the National Assembly Act No. 14 of 2011. “You shall realise that in terms of the provisions of the above quoted section you have lost your status as a member of parliament the moment you attached your signature to the said letter,” Puseletso said in a letter.

His lawyer, Advocate Letuka Molati said: “Client demands that you withdraw your name from the said list formally by writing a letter to the speaker of the National Assembly to that effect on or before Friday 10th November.” In the event that they refuse to withdraw their names, Puseletso said he would take that they have crossed the floor and therefore lost their status as MPs who got into Parliament through Proportional Representation. “Client demands that you should unequivocally state that you shall vote with government in the motion of no confidence because of the precarious nature of your position. Client instructs to remind you of the phrase: he who lives in a glass house should not throw stones,” the letter furthers states. 

By the phrase, Puseletso said PR MPs cannot be seen to be taking un-thought-of positions in Parliament for they entered Parliament through a compensatory seat that belongs to their respective parties, adding that this means freedom of association for such MPs has limitations.

In the main application, Puseletso has asked the court to defer the motion against Matekane until the conclusion of reforms process in which Parliament shall promulgate provisions to regulate the passing of vote of no confidence. 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 a motion of no confidence is successfully passed against him. The Thaba Moea legislator says the amendment violates the basic structure of the constitution.

He 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 an fresh mandate but decide on 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, Puseletso claims that there is violation to the basic structure of the constitution 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 also embarked upon as Section 87 of the 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.

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