Chief Justice criticises parly

Mohloai Mpesi

Chief Justice Sakoane Sakoane has come down heavily on the parliament for continuing with business as usual in light of a constitutional application before the Court challenging its recall.

Sakoane said in a democracy, when the manner in which parliament was recalled is being challenged in court, the parliament would suspend its proceedings until the matter has been finalised.

“Do you think the parliament is advised, it has lawyers? They were served with papers but they are just proceeding with their business,” he said to Attorney advocate Monaheng Rasekoai who was representing the respondents in the matter.

“We cannot interdict parliament… but as co-equal branches, any institution of the state, once they are before this court they have to respect the processes. They cannot tell me that they have not been interdicted.

“We will do our job here and they will do their job, then maybe the future is going to resolve whatever problems… The future will answer,” he added.

Journalist Kananelo Boloetse and lawyer advocate Lintle Tuke this week separately filled applications to the High Court challenging the declaration of a state of emergency by Prime Minister, Dr Moeketsi Majoro, and the subsequent recalling of parliament by His Majesty King Letsie III.

Speaker of the National Assembly, President of the Senate, Council of State and the Attorney General were also cited as respondents in the matter.

“The King is sued, Prime Minister is sued, Speaker of the National Assembly is sued, President of the Senate is sued, Council of State is sued and the Attorney General is sued but life is continuing as if nothing is happening,” Sakoane said yesterday.

Boloetse and Tuke’s applications were consolidated into one application and heard concurrently yesterday.

Three High Court judges, Chief Justice Sakoane CJ, Justice Tšeliso Monaphathi and Justice ‘Mafelile Ralebese are presiding over the matter.

Prime Minister Majoro declared a state of emergency last week August 16, 2022.

He indicated that a major factor which compelled him to declare the state of emergency was the failure of parliament to pass the Eleventh Amendment to the Constitutional Bill, 2022 and the National Assembly Electoral Amendment Bill, 2022, on account of lapse time.

“Realising that failure to pass the two bills means continuation of unchecked politicisation of the public service, including the security agencies, loopholes in the constitution, formation of coalition governments, unregulated floor crossing in parliament and inadequate regulation of political parties, which have been identified as factors undermining political stability, justice and peace in the country,” Majoro said when he declared a state of emergency.

He said that unless the stated undesirable situation is addressed, “it is likely to be beyond control and escalate thus causing more threat to the peace, safety and stability of the Basotho nation”.

On August 23, the King recalled parliament to deal with the business of passing the bills into law in order to overcome the public emergency.

“Owing to this urgent need, the parliament shall convene from 24th August to the 29th August 2022, thereafter shall stand dissolved,” read the legal notice no.82 of 2022.

In his founding affidavit, Tuke told the court that the alleged declaration of state of emergency by Majoro “is not the one envisaged by the constitution”.

He argued that failure by parliament to pass laws can never be construed as an emergency.

“It simply translates to inefficiency on the part of the legislature. There is no public emergency which threatens the life of the nation at all,” he said.

In his court papers, Boloetse also argued that the declaration of the state of emergency by Majoro “is expansive, lacks sufficient particularity, vague and opinionated” and therefore subject to abuse and inconsistent with Section 23(1) of the Constitution of Lesotho.

He said the state of emergency is essentially an instalment of a hybrid legal order that allows the executive extraordinary powers to act beyond normal laws and rules governing society.

“The declaration of one must be attended by sufficient detail, and particularity to avoid the risk of abuse. The Constitution envisaged an event of calamity or emergency for the declaration of a state of emergency, it did not intend for fluid, unclear and opinionated patches of policy failures by the government,” he said.

He argued that the state of emergency must be exceptional; “this characterizes a situation that prohibits the government from discharging its fiduciary duties”.

Boloetse further said; “The present situation will hardly ever be imminent as is clearly the statement of political opinion, and even if I were to agree to it, it can hardly be true that a state of political stagnation, mismanagement, lack of proper governance constitute a state of emergency within the confines of our Constitution.”

Boloetse also argued that there is hardly anything surprising about the Lesotho political situation cited as the cause for the declaration of the state of emergency.

“There is no threat to the continuance of the life of the citizens of Lesotho,” he said. “Bills have been beaten to time in Lesotho and elsewhere, it is not a novel situation that will still the whole of Lesotho for a bill not to pass,” he added.

He argued that constitutional powers were being used to remedy a political failure that should have been foreseen by the government.

Tuke and Boloetse want the court to declare the declaration of the state of emergency as null and void. The judgement will be delivered on Tuesday next week.