ConCourt ruling could spell more hurdles for reforms process



MASERU – The Constitutional Court’s invalidation of the 9th Amendment to the Constitution could plunge Lesotho’s national reform process into a further crisis by delaying them further. This as the country seeks to make significant progress to appease the international community and development partners, who say failure to promulgate reform-related legislation threatens the country’s stability.

Reforms have experienced numerous setbacks, including the court’s nullification of the Eleventh Amendment to the Constitution Bill after it was passed by a recalled Parliament under the pretext of a state of emergency.

The bill contained some of the reform-related legislation, but the court faulted that procedure and nullified all business done in that parliament, including the passing of the Bill.

In a different turn of events that also threatens the reform project, law experts warned that the majority of the proposed reform laws in effect violate the design, substance, and basic structure of the constitution.

Although not a new phenomenon, the basic structure of the Constitution has never been debated before in Lesotho, but Judges Tšeliso Monapathi, Molefi Makara, and Keketso Moahloli say Lesotho’s Constitution has a basic structure that cannot be violated.

In a landmark judgement last Friday, the three-panel judge affirmed Lesotho’s democratic state as a basic structure that no other law should violate.

Their decision came out of a constitutional challenge by Revolution for Prosperity (RFP) legislator for Thaba Moea constituency, Lejone Puseletso, who argued that the ninth amendment to the Constitution violates the basic structure of Lesotho’s constitution as provided for in Section 1.

Justices Monapathi and Makara ruled that the ninth amendment to the Constitution violates the basic structure of the “democratic constitution of Lesotho as provided in Section 1.”

Specific provisions that were attacked are sections 83 (4) and 87 (5a). Section 83(4) spoke to prorogation and dissolution of Parliament and provided that “In the exercise of his powers to dissolve or prorogue Parliament, the King shall act in accordance with the advice of the Prime Minister if the National Assembly passes a resolution of no confidence in the Government of Lesotho and the Prime Minister does not within three days thereafter either resign or advise a dissolution, the King may, acting in accordance with the advice of the Council of State, dissolve Parliament.”

On the other hand, 87 (5a) states that the King may, acting in accordance with the advice of the Council of State, remove the Prime Minister from office if a resolution of no confidence in the Government of Lesotho is passed by the National Assembly and the Prime Minister does not, within three days thereafter, either resign from his office or advise a dissolution of Parliament.

The ninth amendment was promulgated in 2020 and essentially removed the Prime Minister’s powers under the old section to opt for dissolution of Parliament in the event of a vote of no confidence successfully being passed.

Those who supported it said it was meant to avoid the time-consuming process of conducting fresh elections or seeking early elections every time the Prime Minister losses a vote of no confidence motion.

However, the Constitutional Court has now nullified the law for its inconsistency with the basic structure of the constitution.

If Justices Monapathi and Makara’s judgement passes the Appeal Court test, all other laws that violate the basic structure of the Constitution may easily be challenged, including the proposed reform laws.

Experts who spoke at a symposium organised by Human Rights Defenders, the Transformation Resource Centre (TRC) in December last year said there were fatal errors committed in the formulation of the Omnibus Bill (proposed reform laws).

Law professor and constitutional law expert, Professor Hoolo Nyane, said attention was not paid to the structure and theory of the current Constitution when the Omnibus Bill was drafted.

Careful attention to the Constitution, he said, would have ensured that the proposed amendments are in line with the theories of the Constitution.

Prof. Nyane said Lesotho’s Constitution is monarchical, democratic, parliamentary, and liberal, and therefore all proposed amendments should be in line with the four theories.

He said some reforms are not in line with the theories. He argues that correction can be done by penning a new constitution.

America-based law professor Ricard Albert warned that countries seeking to reform their constitutions must draw a distinction between amendment and dismemberment.

Failure to draw a distinction, he said, opens floodgates for litigation challenging legislation borne as a result of dismemberment. He said reforms borne out of dismemberment cannot stand a constitutional test.

Prof. Albert notes that an amendment serves only four purposes: to elaborate, correct, reform, and restore, and that if it goes beyond those purposes, it amounts to dismemberment.

He says that amendment does not introduce a transformative change to a constitution but that dismemberment in its nature exceeds boundaries set by current constitutions and often alters the identity or structure of a constitution.

He cited a number of instances where courts invalidated all constitutional reforms that were a product of dismemberment, including Kenya, and warned that countries must be careful in their reform processes.

Some of the reasons courts give for nullifying reforms borne out of dismemberment include procedural irregularity, a situation where one or two procedures have not been followed.

Subject rule mismatch is said to be a situation whereby a single procedure is followed in passing legislation that needs to follow a different procedure.

The basic structure is described as a common law doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by the legislature.

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