9th amendment conundrum divides legal minds

RELEBOHILE TSOAMOTSE

MASERU – The enactment of the ninth amendment to the constitution has significantly enhanced the power of Parliament relative to other branches of government, effectively placing it above the usual checks and balances. This amendment empowers Members of Parliament (MPs) to select a new Prime Minister following a successful motion of confidence against an incumbent.

This shift has led to concerns about Parliament’s accountability to the public, who elect representatives tasked with such significant decisions as choosing a Prime Minister. Advocates of the amendment may not have fully anticipated its impact on the participation of key stakeholders, including His Majesty the King, who constitutionally advises on the dissolution of Parliament.

Revolution for Prosperity (RFP) representative Lejone Puseletso raised these issues yesterday before a five-member bench of the Appeal Court, as the court examined the fundamental structure of Lesotho’s Constitution. The main opposition parties, the Democratic Congress (DC) and the Basotho National Party (BNP), are challenging the High Court’s decision—which functioned as the Constitutional Court—in declaring the ninth amendment unconstitutional.

Judge Keketso Moahloli, serving on the panel, issued a dissenting judgment, disagreeing with their arguments. Justices Molefi Makara and Tšeliso Monapathi ruled that sections 85(5), 85(5)(a), and 83(4) of the amended Constitution are unconstitutional “to the extent that they violate the basic structure of the democratic Constitution of Lesotho as provided by the Constitution of Lesotho.” However, the judges expressed concerns about the breadth of their ruling.

“Are the orders not too broad because the words to the extent that it contravenes the basic structure of the democratic constitution opens a debate of how far can it go?” asked Judge Petrus Damaseb. Supporting this concern, Justice Johann van der Westhuizen highlighted issues with the phrasing used in the orders. He also raised concerns about the procedural implications of the amendment.

“The amendment allows for a motion to be tabled and, simultaneously, for the proposal of a prospective candidate. Isn’t there a problem with a motion being raised and the name of a new potential candidate also being brought up at the same time?” he questioned. However, Judge Weisthuizen’s concerns did not end there.

He also questioned whether a litigant could potentially challenge the constitutionality of the amendment years after it had taken effect. Additionally, he raised concerns about whether blocking a sitting Prime Minister, according to the amendment, would necessitate advising the King to dissolve Parliament, a move he noted could violate the basic structure of the Constitution. The President of the Appeal Court, Dr. Kananelo Mosito, queried the concept of a basic structure itself, asking: “Is there one basic structure, or does it vary depending on the issue at hand?”

This prompted another judge, Phillip Musonda, to further ask: “What exactly is the test for this basic structure? Should we consider the nation’s values, perhaps?” While the DC and the BNP concurred that the Constitution has a basic structure, they argued that the enactment of the ninth amendment did not violate this structure. Advocate Monaheng Rasekoai, representing the two parties, argued that for the basic structure of the Constitution to be considered violated, the values and ethos it upholds must be infringed.

These values include constitutional monarchy, democracy, and sovereignty. On the other side, King’s Counsel (KC) Motiea Teele, representing Lejone, said Lesotho’s status as a monarchical country inherently involves the King in governmental affairs, including the dissolution of Parliament. He argued that by allowing MPs to elect their own Prime Minister without consulting either the State Council or His Majesty, the ninth amendment infringed upon the spirit of the Constitution.

Teele also pointed out to the court that the concept of a basic structure is well established in Lesotho’s legal framework, referencing a significant ruling in the Court of Appeal. He cited the renowned Boloetse’s judgment, which stated: “Standing Order No 105B does not comply with the spirit and purpose of Section 78 of the Constitution, interpreted within context of Lesotho’s constitutional democracy and monarchy.”

He explained that this judgment underscores the recognition by the court that the constitution possesses a fundamental structure, spirit, and purpose. “Proponents of the ninth amendment to the constitution saw it as a tool against the Prime Minister, but they overlooked the broader implications. The King’s role in the dissolution of parliament is critical, and any amendment that eliminates this role is problematic,” stated one of the advocates. The constitutionality of the ninth amendment came under scrutiny when Prime Minister Samuel Matekane faced a motion of confidence.

An MP from his party, Puseletso, requested that the court postpone the motion against Matekane until the completion of the reform process, during which Parliament is expected to enact regulations governing the procedure for a vote of no confidence. Additionally, it was alleged that the amendment breached the basic structure of the constitution. The judgment has been reserved.