By Thoboloko Ntšonyane
MASERU – The parliament has recently faced recurring issues where it was forced to adjourn business pending the finalization of the court cases to which it is a party.
Just after resuming from last week’s adjournment while awaiting the ruling on the court case, the Speaker of the National Assembly, Rt Hon Tlohang Sekhame told the august house that they had to adjourn to allow the court processes to take place.
This time, the house is confronted by the two court cases being that filed by the prominent journalist and activist, Kananelo Boloetse where he has appealed last week ruling handed by the Constitutional Court (ConCourt) to the effect that the incoming parliament can resume the business from the previously dissolved parliament.
By this ruling, the ConCourt has effectively endorsed the provisions of the Standing Order 105 B, which says the “Business that has lapsed with dissolution or prorogation of Parliament may be reinstated by resolution of the House and will be resumed in the National Assembly at the stage it had reached in the previous Parliament”.
The court had made these pronouncements in the case wherein the petitioners had challenged that by invoking the provision of the Standing Order 105B as null and void arguing that they contravene the law-making processes and procedures as stipulated in section 78 of the Constitution.
The petitioners had lodged the court seeking an interdiction that respondents be jointly or severally restrained from promulgating into law “all the dead bills” which were dissolved when the life of the 10th came to an end.
The applicants are Yearn for Economic Sustainability (YES), Media Institute of Southern Africa (MISA) and Kananelo Boloetse being first to third applicants respectively. The respondents are the Speaker of the National Assembly, the President of Senate, the Clerk of the National Assembly, Minister of Law, Justice and Parliamentary Affairs, the Senate, the National Assembly, His Majesty King Letsie III and the Attorney General being the first to eighth respondents respectively.
The judgment is written by Judge Moroke Mokhesi and Judges ‘Maseforo Mahase and Polo Banyane have concurred.
The court established that “In Boloetse, it was dealing with the constitutionality of recalled Parliament to deal with the Bills which fell with its dissolution. The 10th Parliament had been dissolved and when it was recalled on the pretext of the fictitious state of emergency to deal with the business it had failed to dispose of before its dissolution, it clearly acted inconsistently with the Constitution.
“The facts of that case are different from the current one in that the 11th Parliament is in session only that it is on winter adjournment. It has been recalled to invoke its legitimate and constitutional powers in terms of Standing Order No. 105B to reinstate the business with the dissolution of the 10th Parliament… it is well within its powers to reinstate the unfinished business of the 10th Parliament.”
The applicants were represented by Advocate Fusi Sehapi and the respondents were represented by Advocate Thomas Thakalekoala.
In the appeal case which seeks for the reversal of the ConCourt judgment in that it has “erred in law and misdirected itself” when declaring that the parliament is within its powers to revive the business from the dissolved parliament, Boloetse is a sole petitioner and the respondents are the Speaker of the National Assembly, the President of Senate, the Clerk of the National Assembly, the Minister of Law and Constitutional Affairs, who doubles as the Leader of the House, the Senate, the National Assembly, His Majesty King Letsie III, and the Attorney-General being the first to eight respondents respectively.
In his prayers, Boloetse argues that “initiating the bill from reinstatement violates [his] right to participate in the law-making process and/ or the Senate right provided in section 20 and 78 respectively”.
Also, the two MPs (Members of Parliament) who are also party leaders, Hon Nkaku Kabi of All Basotho Convention (ABC) and Hon Tefo Mapesala of Basotho Patriotic Party (BPP) being the first and second applicants respectively have filed a court application challenging the legality of the reconvening of the National Assembly under the “Special Meeting” arrangement.
“The request of the Deputy Prime Minister [Justice Nthomeng Majara] for Special Meeting of the National Assembly (Recall of Parliament during adjournment) dated 4th August 2023 addressed by the Speaker be declared unlawful,” reads their application.
In their court papers, Hon Kabi and Hon Mapesela want the court to declare as unlawful and in breach of principles of separation of powers, the decision of the Speaker of the National Assembly to convene a “special meeting” when the court was seized with the case challenging the legality of reinstatement of unfinished work of the previous parliament was still being heard.
Among their prayers, the petitioners also want the court to declare that a motion of no confidence in the government could be by simple majority.
They had also applied for a stay of August 28th proceedings pending the finalization of their case.
The respondents in this ConCourt case are the Speaker of the National Assembly, the Clerk of the National Assembly and the Attorney-General.