By: Thoboloko Ntšonyane

MASERU – The President of the Court of Appeal Prof Kananelo Mosito announces that the ruling for the case challenging the constitutionality of the 9th Amendment to the Constitution famously called ‘kotopo’ is reserved.

Owing to the seriousness of this case, the court’s President says they still have to go through piles of applications filed by the parties involved and will deliver judgment on June 14.

“We have to take our time, and we intend to come back with the judgment on the 14th of June. We need to give ourselves time to ruminate over the basic structure,” says the court’s President.

This case was filed at the last minute and was the last one to be heard by the apex court during its April sitting.

Following the Constitutional Court (ConCourt) ruling which had deconstitutionalise the ninth amendment on the case lodged by the Member of Parliament (MP) Hon Lejone Puseletso, where he challenged the constitutionality of the ninth amendment to the Constitution, the opposition parties had appealed this ruling.

They want the court to declare the ninth amendment constitutional.

Lejone approached the court at the time when the opposition had lodged a motion of no confidence in the Prime Minister and had petitioned the court to order the stay of such a motion pending the passage of the national reform laws which regulate how this motion is to be passed.

The Thaba-Moea MP argues that the amendment is unconstitutional as it undermines the “basic structure” of constitutional democracy.

In its majority ruling the ConCourt heolds that: “The 9th amendment to Section 87(5) (a) of the Constitution is declared unconstitutional to the extent that it violates the basic structure of the Constitution of Lesotho as provided in Section 1 of the Constitution of Lesotho, 1993.

“Section 83 (4)  and 87 (5) is equally declared unconstitutional to the extent it violates the basic structure of the democratic Constitution of Lesotho as provided in Section 1 of the Constitution of Lesotho 1993.”

Meanwhile, the minority judgment is not in accord with the majority judgment.

The ninth amendment is a motion established through the private members bill and is sponsored by Advocate Lekhetho Rakuoane, the Popular Front for Democracy (PFD) leader.

The amendment says that the Prime Minister should not ask the King to call elections should the incumbent lose to motion of no confidence but instead, the successor be elected in the National Assembly without having to go through the elections processes.

The motion of no confidence in the Prime Minister has been a regular phenomenon in the National Assembly with the advent of the coalition governments from when Lesotho first had it in 2012.

The ninth amendment is operation listed through through Act No.7 of 2020. The amended Sections 83(4) of the Constitution reads: (d) “If the National Assembly passes a resolution of no confidence in the Government of Lesotho the Prime Minister shall resign if the resolution of no confidence propose a name of a member of the National Assembly for the King to appoint in the place of the Prime Minister.

(e) “The Prime Prime shall not advise a dissolution under this section, unless the dissolution is supported by a resolution of the ⅔ majority of the National Assembly.”

The parliament reasons that amending the provisions of the Constitution through this amendment will save the country millions that it will always insure when conducting the general elections every time there is a dissolution of parliament resulting from a loss to no confidence motion of the sitting government.

The parliament also argues that the move will also save the jobs of the MPs as not all of them will return to parliament – as some could fail to win the constituency while others their party may not appoint or re-appoint them back to the parliament through the proportional representation (PR) arrangement.

The Democratic Congress (DC), Basotho National Party (BNP) and the PFD then approach the Court of Appeal to reverse the ConCourt decision on this matter.

The appellants lawyer Attorney Monaheng Rasekoai says one that cannot be taken away is the “enormity” of this case because of its peculiarity.

Attorney Rasekoai persuades the court to embrace the ConCourt minority ruling.

He submits that as this is a constitutional review and not the human rights review, Lejone cannot claim that his rights are violated yet the motion is not even been tabled before the august house.

He says even if the vote of no confidence is tabled, it can go otherwise, that being either in favor or not against the litigant.

Asking a rhetorical question, Attorney Rasekoai asks if the notice of motion of no confidence which was not debated warrants to be challenged before the court.

“Should I await because it may very well happen that it does not come to fruition and become a law.

“Or should I await for the process to unfold until such time when it’s  a law then approach a court of law and say well this law is unconstitutional it is capable of creating consequences which can adversely affect my interest as an individual?” he asks.

Representing the respondent, Advocate Motiea Teele KC argues that Lesotho’s constitution sanctions democracy as a system of government and within the Monarchy State.

“I submit my Lord that democracy in terms of section 11, includes the chapter 2 rights because democracy operates not only in favour of the majority, it also operates in favour of the minority,” he argues.

He stresses that it is democratic to respect the rights of the minority.

Advocate Teele KC further shows that the countries are adopting constitutions with fundamental rights.

In Lesotho, previously it was difficult to anchor a claim against violation of human rights when the country was operating on statutes.

Meanwhile, the highest court in the land has heard 37 cases in the April session and will hand down the judgments on May 3rd.

The Appeal Court has only two sessions in a year during the months of April and October. It also hears urgent matters when they arise, upon request to do so.