By: Thoboloko Ntšonyane

MASERU – The Court of Appeal ruling has nullified the controversial ninth amendment to the Constitution declaring it ‘unconstitutional’.

The ruling of this second court of record paves the way for the sitting Prime Minister to advise the King to call snap elections in a case where the incumbent is removed from power through a motion of no confidence and does not resign within three days.

The ninth amendment in question had been enacted to counter this, arguing that snap elections are expensive for the country. The Act states that if the Prime Minister loses a vote of no confidence, the successor may be elected in parliament without going to elections.

It will be remembered that since coalition governments became the order of the day in Lesotho from 2012 when the election results produced a hung parliament, there have been four general elections: in 2015, 2017, and 2022.

The ninth amendment came into force in 2020 when the then 4×4 coalition led by Prime Minister Thomas Thabane was toppled in parliament, and Dr. Moeketsi Majoro became the Prime Minister without elections.

This now leaves uncertainty over the vote of no confidence motion in the Prime Minister Rt Hon. Ntsokoane Matekane and his led government, which had been on hold pending the finalization of this case.

To avert the impending vote of no confidence in the government in October 2023, Thaba-Moea No. 73 Member of Parliament (MP) under the Revolution for Prosperity (RFP) party led by Matekane petitioned the Constitutional Court (ConCourt) praying that it declares the ninth amendment to the Constitution section 87 (5).

The ConCourt held 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.”

The petitioner wanted the apex court to declare this amendment as unconstitutional to the “extent that it violates the basic structure” of the Constitution per the section one of the Constitution, 1993.

Secondly, he wanted the passing of the vote of no confidence which was confronting his leader who is the Prime Minister be deferred pending the completion of the reforms process which will address this conduct around the vote of no confidence.

The appellants were the Democratic Congress (DC), Basotho National Party (BNP) and the Popular Front for Democracy (PFD) being first to third appellants respectively.

The respondents were Lejone Puseletso, the Speaker of the National Assembly, Clerk of the National Assembly, the Prime Minister, Minister of Law and Justice, the Attorney-General and the Independent Electoral Commission (IEC) being first to seventh respondents respectively.

Majority judgment

The majority judgment dismisses the appeal and nullifies the amendment while the minority judgment upholds the appeal and as well as the amendment. So, effectively, the majority ruling holds.

The court’s President Prof Kananelo Mosito wrote the ruling and it was agreed to by Judge Petrus Damaseb (Namibia) and Judge Phillip Musonda (Zambia).

It reads: “I have had the benefit of reading the judgment by my Brother, Van Der Westhuizen AJA (with whom My Brother Chinhengo AJA concurred). While I commend the detailed reasoning and analysis my Brother Van Der Westhuizen AJA has provided, for the reasons which follow hereunder, I regret that I am unable to concur with the conclusion he has proposed or reached that the Ninth Amendment Act to the Constitution of Lesotho does not undermine the basic structure or violate the foundational principles of the Constitution of Lesotho.

“At the core of my disagreement lies a profound concern over the Amendment’s impact on the democratic process and the role of the electorate in choosing their government. By excluding the Prime Minister’s power to advise the King to dissolve Parliament and mandating the King’s appointment of the Prime Minister based solely on the National Assembly’s choice, without public participation, the Amendment seriously undermines the principles of democracy enshrined in our Constitution.

“Moreover, the perceived diminution of the King’s role and powers as the symbolic head of state in this democratic kingdom is a matter of grave concern. Section 1 of the Constitution unambiguously proclaims Lesotho to be a sovereign democratic kingdom, and any amendment that undermines this proclamation must be treated with utmost seriousness. I am firmly convinced that the Ninth Amendment Act has crossed a threshold requiring judicial intervention to uphold the Constitution’s integrity and preserve the democratic order. With this conviction, I respectfully dissent and align myself with the view that the Ninth Amendment Act undermines the basic structure of the Constitution and should be declared unconstitutional. I have also read the opinions of my Brothers, P.T Damaseb AJA and P. Musonda AJA, and I agree with their opinions as reflected in their respective judgments.”

Dissenting judgment

Judge Van Der Westhuizen (South Africa) penned the dissenting judgment and it was concurred to by Judge Moses Chinengo (Zimbabwe).

Their ruling reads: “In the judgment by Mosito P it is mentioned that the role of the King is ceremonial. If that is true, as it seems to be, what real power can be taken away from the King? In practice the role and power of the King are not substantially reduced, but minimally, if at all.

“Furthermore, it would be unwise and short-sighted for this Court to render a binding decision that Lesotho may never in the length of time consider changes to the role of the King and even aspects of or the continuation of the monarchy, by, for example, the amendment of section 1 or other provisions dealing with the King, for example to allow for a Queen.

“The Constitution provides for its amendment. Parliament can do so by following the prescribed procedure. Also given the nature of the amendment at stake here, as well as the unreasonable lapse of three years since the passing of the Ninth Amendment Act, this seems like a situation in which courts neither have to, nor should l, interfere. Parliament should look after itself. This is what is supposed to be happening right now- as we speak…and write. The court gifted much of the world with the concept of constitutional supremacy and the power of courts to review the constitutionality of legislation warned us in that direction with their political action doctrine….”

They further argued that the High Court sitting as the Constitutional Court “misdirected itself in finding that the amendment undermined the basic structure of the Constitution. The majority’s earlier quoted reference to “the impression that one holds office of the Prime Minister at the pleasure of parliamentarians” overlooks the fact that this is in any event the case, because of the availability of a motion of no confidence that enables members of the National Assembly to vote the Prime Minister out of office, without a general election”.

Mixed-bag reactions over the ruling

Meanwhile, the judgment was received with mixed feelings. While some are in favour, others view it negatively.

There have been concerns that the constant changes of government pose political instability in Lesotho, resulting in fears among investors and threatening the investments of development partners, especially when they have poured millions into development projects.

Puseletso welcomed the ruling saying “I filed a court application to protect the sitting Prime Minister and the Basotho who elected him. I had reservations about this act  [ninth amendment]”.

He said he was “scared” when the motion of no confidence was lodged, as he thought it was too early to remove the Prime Minister within such a short time in power.

Thaba-Moea MP said he wanted to serve the interests of his constituency, stating that he takes his mandate from them.

On the other hand, Advocate Lekhetho Rakuoane said courts have spoken, and he will abide by their decision.

The PFD leader said he respects the court’s decision.

“My problem, however, is the can of worms they have opened. The main issue is that it is undemocratic to elect a new Prime Minister in parliament.

“The problem is that even in reforms, some of those laws will have to be tested through this ruling. Even the Constitution cannot be enacted because it’s they [courts] who said it is correct.”

He said that even conducting a referendum will prove difficult due to this ruling.

He could not be drawn to comment on whether the motion of no confidence in the government will still continue as planned, saying he does not qualify to comment on that.

Advocate Rakuoane is the one who sponsored the ninth amendment through the private members bill in 2020.