Leave Reforms for next parliament: Chief Justice

RELEBOHILE TSOAMOTSE

MASERU – The 10th parliament’s failure to pass reforms-related legislation before its dissolution on June 14 does not constitute an emergency, Chief justice Sakoane Sakoane has ruled.

The Eleventh Amendment to the Constitution (Omnibus Bill) and the National Assembly Electoral (Amendment) Bill, 2022, that parliament sought to pass into laws, he said, fell off when parliament’s tenure came to an end in July because a dissolution terminates all pending bills. Even a recalled parliament does not have jurisdiction and authority to resurrect business killed and buried by its dissolution but only to debate, approve or disapprove the state of emergency declared.

If anything, Judge Sakoane believes that the 11th parliament that is soon to be born after the October 7 elections is best placed to deal with all pending reforms legislation or bills. “It is, therefore, in the national interest that the national reforms project continues in the next administration and all outstanding draft bills not passed by the Tenth Parliament be placed before the Eleventh Parliament that is soon to be borne after the general elections which are just around the corner in October,” Sakoane said.

Justice Sakoane made the findings when delivering judgment in a constitutional challenge by journalist and activist, Kananelo Boloetse who was joined by lawyer, Lintle Tuke, in challenging Prime Minister Moeketsi Majoro’s declaration of the state of emergency and the subsequent recall of parliament by His Majesty King Letsie III. The recall was as per Legal Notice No 82 of 2022 which stated that there was need for the 10th parliament to “complete enactment of Eleventh Amendment to the constitution (Omnibus Bill) and the National Assembly Electoral (Amendment) Bill, 2022.”

Boloetse and Tuke’s cases were then consolidated and heard as one because of their similarity. 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 facing the country can be passed, was also unlawful.

In his declaration of the state of emergency, Dr Majoro said failure to pass the bills means continuation of unchecked politicisation of the public service and the security agencies, loopholes in the constitution, formation of coalition governments, unregulated floor crossing in parliament and inadequate regulation of political parties which all have been identified as factors undermining political instability, justice and peace in the country.

However, the Constitutional Court on Monday dismissed Dr Majoro contentions and agreed with the complainants that provisions of the law were flouted when the alleged state of emergency was gazetted or declared. The court says failure to pass bills does not constitute a state of emergency and that the idea that failure to pass the bills could fuel political instability has no merit. In a judgment agreed to by Justices Tšeliso Monapathi and ’Mafelile Ralebese, Chief Justice Sakoane cites a period in the country from 1970 to 1992 when there was no constitution in the country.

He says the country had moments of political crises and the instability caused by factors such as politicisation of the public service and security agencies by politicians but, that notwithstanding, the nation has gone on with life. “Institutions may have been shaken but certainly not collapsed. It is therefore, a long shot for the respondents to assert that failure by parliament to pass the two bills constitutes a public emergency.”

He adds that it is in the nature of democracy that parliaments pass some bills and fail to pass others. Failure to pass some of the bills, he ruled, does not portend an emergency irrespective of the expectations by powerful interests in the bill. “The disappointment when a bill of popular interest fails to be passed into law cannot be equated to an imminent and actual threat to the life of the nation.”

In fact, Justice Sakoane says the proposition that failure to pass the two bills constitutes a public emergency is a manifestation of too much faith in the ability of the constitution to answer all political and socio-economic problems which he says “although indispensable for a functional democracy and the rule of law, is not a panacea a for all problems thrown up by a dysfunctional political and economic system.”

Instead, the judge said the National Reforms Authority Act 2019 obliges the Minister of Law and Justice to reconvene NRA where exigencies of the Kingdom of Lesotho so require, for the purpose of peace and reconciliation and in furtherance of the objectives of the Act and functions of the NRA. This, he states, point to the fact that reforms are unfinished business for NRA and the next parliament.

In its judgment, the court further found that there is no demonstrable, actual and imminent danger to the life of people/the nation posed by failure of parliament to pass bills before its dissolution on June 14 and the fact that the state of emergency comes two months after the dissolution should be telling. The judges said Parliament should have prioritised the passing of the two bills over other legislative business.

“The applicants are right in their contention that Parliament was simply beaten on white.” The court then ruled that failure by the 10th parliament to pass the two bills can never be a state of emergency and that Parliament simply failed to do its job. “The failure by the 10th Parliament to pass the two bills falls far too low for the threshold of being a public emergency that threatens the life of the nation. There is merit in the applicant’s contention that the failure is symptomatic of malaise in governance and institutional weakness”.

Subsequently, the court then declared/ordered that Dr. Majoro’s declaration of the state of emergency was unlawful for failing to meets requirements of the constitution and further that the recall of Parliament to pass two bills was ultra vires the power of His Majesty. On top of that, it was declared that a recalled Parliament has no constitutional authority to debate and pass the two bills. Government has since appealed the whole of the Constitutional Court judgement asking the Apex Court to overturn the decision.

 

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