As it petitions Appeal Court to reconsider its ruling on Ninth Amendment case
Thoboloko Ntšonyane
MASERU – Barely two months after a landmark ruling on the controversial Ninth Amendment to the Constitution, in which the Court of Appeal declared it unconstitutional, the opposition has petitioned the highest court in the land, seeking a review of that decision.
Unwilling to accept the verdict, the opposition is now seeking a reassessment, arguing that the ruling may have overlooked critical aspects of constitutional law. This move sets the stage for another high-stakes legal battle that could have profound implications for the ongoing national reforms and the powers of the parliament.
The petitioners argue that sections 83 (4) and 87 (5) (a) of the Ninth Amendment to the Constitution, allowing for the removal and replacement of the Prime Minister through a motion of no confidence without the King’s intervention are “invalid for violating” section 1 read with sections 2 and 20 of the Constitution on democratic processes liable to include the King and the voting public.
The applicants are Basotho Patriotic Party (BPP), Democratic Congress (DC), Basotho National Party (BNP), and the Popular Front for Democracy (PFD) being first to fourth applicants respectively. The respondents are the Court of Appeal, the Registrar of the Court of Appeal, Lejone Puseletso, the Speaker of the National Assembly, the Clerk of the National Assembly, Minister of Law and Constitutional Affairs and the Independent Electoral Commission (IEC) being the first to ninth respondent accordingly.
“The case went further to pray that the vote of no confidence against the current Prime Minister (PM) be stalled until the substitutive Constitutional law reforms i.e. the 11th Amendment (Alteration) to the Constitution Bill that augur with the Constitution have been passed into law;
“The Court has made a decision in favor of the Applicant as requested in prayer 1. On the other hand, the Court has committed a grave omission and serious injustice by failing to ensure that replacement section to the nullified Ninth Alteration to the Constitution as contained in section 83C (a) and (b) of the 11th Alteration to the Constitution are Constitutionally compliant;
“Now the unconstitutional Constitutional reforms sounding in 11th Alteration to the Constitution Bill are liable to be passed into law anytime and their constitutional validity may only be tested in the Bill’s stage and before they are passed into law and dissolve inseparably and indivisibly into the Constitution,” reads the petitioners court’s papers.
In its ruling on June 14, the Court of Appeal paved way for the incumbent 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 was passed because then, the argument was 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.
Since the inception of the coalition governments from 2012 when the election results produced a hung parliament, there have been four general elections: which include 2015, 2017, and 2022.
When he saw that the government which his party is leading was about to be toppled through a no confidence vote in the government in October 2023, Thaba-Moea No. 73 MP Hon Lejone Puseletso of 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 highest court in the land was divided in its ruling as it had the majority and minority ruling. The case was heard by the five judges who form the full bench of the court.
The majority judgment dismissed the appeal and nullified the amendment while the minority judgment upheld the appeal as well as the amendment.
President of the apex court, 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.”
On the other hand, the dissenting judgment was penned by Judge Van Der Westhuizen (South Africa) 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 and warned us in that direction with their political action doctrine….”
They further held 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”.
The Appeal Court is set to hear this case during its second session in October.