LCD ar­gu­ments un­con­vinc­ing

Lesotho Times - - Opinion & Analysis - Ut­loang Ka­jeno

SEC­TION 2 of the Le­sotho Con­sti­tu­tion Or­der 1993, un­der the supremacy clause, stip­u­lates that: “This Con­sti­tu­tion is the Supreme Law of Le­sotho and if any other law is in­con­sis­tent with this Con­sti­tu­tion, that other law shall, to the ex­tent of the in­con­sis­tency, be void”.

The Concise Ox­ford English Dic­tio­nary de­fines a con­sti­tu­tion as a body of fun­da­men­tal prin­ci­ples or es­tab­lished prece­dents ac­cord­ing to which a state or or­gan­i­sa­tion is gov­erned.

I may add that it de­ter­mines the com­po­si­tion and func­tions of the or­gans of cen­tral and lo­cal gov­ern­ment in a state and reg­u­lates the re­la­tion­ship be­tween the in­di­vid­ual and the state.

Prior to the vir­tual col­lapse of the cur­rent coali­tion gov­ern­ment, the leader of the Le­sotho Congress for Democ­racy (LCD), Deputy Prime Min­is­ter Mo­thetjoa Mets­ing ve­he­mently ar­gued that in what­ever de­ci­sions his se­nior part­ner in the coali­tion Prime Min­is­ter Thomas Tha­bane took, the lat­ter ought to con­sult him.

He ar­gued this was in terms of the agree­ment that was signed by the two of them and Ba­sotho Na­tional Party (BNP) leader Chief Th­e­sele ‘Maserib­ane.

This un­for­tu­nate and er­ro­neous be­lief on his part, whether de­lib­er­ate or gen­uinely con­strued, even trick­led down to some of his fol­low­ers in the LCD who ar­gued that there are three prime min­is­ters in Le­sotho, of equal stand­ing and power.

Fol­low­ing the col­lapse of the coali­tion gov­ern­ment and sub­se­quent sign­ing of the Wind­hoek, Vic­to­ria Falls and fi­nally Maseru Fa­cil­i­ta­tion Ac­cords as well as the Elec­toral Pledge (EP) in the run-up to the snap gen­eral elec­tion, the LCD Act­ing Spokesper­son, Se­libe Mo­choboroane, is quoted in the Sun­day Ex­press as say­ing:

“One of the is­sues the LCD is go­ing to ta­ble be­fore Pres­i­dent Zuma is the con­tin­ued vi­o­la­tion of the Elec­toral Pledge (EP) by Tha­bane.

“Among other stip­u­la­tions, the EP, which seeks to en­sure a free and fair elec­tion, says there should be no ap­point­ments or dis­missals of key per­son­nel in state in­sti­tu­tions dur­ing the elec­tion pe­riod which started on 8 De­cem­ber, but the prime min­is­ter is do­ing ex­actly the op­po­site.

“His re­cent ap­point­ment of the Pres­i­dent of the Court of Ap­peal, Jus­tice Kananelo Mos­ito and de­mo­tion of Act­ing Po­lice Com­mis­sioner Ma­supha Ma­supha, are two glar­ing ex­am­ples of this vi­o­la­tion, and th­ese are some of the is­sues Mr Mets­ing is go­ing to raise with Pres­i­dent Zuma.”

For starters Mr Mo­choboroane seems to have con­ve­niently forgotten that dur­ing the same pe­riod, His Majesty King Let­sie III, on the ad­vice of the Prime Min­is­ter, ap­pointed Leshele Thoahlane KC as the Om­buds­man.

One won­ders why he never protested about this ap­point­ment.

Messrs Mo­choboroane and Mets­ing ought to un­der­stand that the Con­sti­tu­tion, like it rightly says, is the supreme law of Le­sotho and any other law, read agreeme agree­ment as well, that is in­con­sis­tent with this con con­sti­tu­tion is void, to the ex­tent of that in­con­sis in­con­sis­tency.

They want us to al­low a sit­u­a­tio sit­u­a­tion whereby th­ese agree­ments and the EP are supreme to the Con­sti­tu­tion.

This is a fal­lacy ev­ery day of th the week. It is ab­so­lutely er­ro­neous and I am sure both of them know that they are misle mis­lead­ing this na­tion. That is why Mr Mets­ing went t to the Con­sti­tu­tional Court to ar­gue t that cer­tain sec­tio sec­tions of the An­tiAnti-cor­rup­tion Act oughto to be de­cla de­clared un­con con­sti­tu­tiona al be­cause in ev­ery sovereign state the c on­sti­tu­tion reigns s supreme. Any law and con­duct oug ought to fall within the pa­ram­e­ters of the con­sti­tu­tion. They are just be­ing disin­gen­u­ous to sug­gest that th­ese agree­ments ought to over­ride the con­sti­tu­tion.

As for the er­ro­neous as­ser­tiont that there are three prime min­is­ters with equal pow­ers and stand­ing, I bet­ter not harp on this is­sue any fur­ther for the ob­vi­ous fal­lacy it con­veys save that it is as un­for­tu­nate as it is a non­starter.

In re­gard to con­sul­ta­tions, the LCD ought to know as they should know that by be­ing vested with prime min­is­te­rial pow­ers by the Con­sti­tu­tion, Dr Tha­bane, has cer­tain pre­rog­a­tives which, by law, are his ex­clu­sive rights and priv­iledges.

He can ex­er­cise those rights to the ex­clu­sion of all the oth­ers ac­cord­ing to the Con­sti­tu­tion, the supreme law, that which other laws owe their le­git­i­macy to.

Let us, for ar­gu­ment’s sake, ar­gue that all th­ese agree­ments were bind­ing on the pre­mier, as clearly they should. But herein comes the catch, ac­cord­ing to the law of con­tract.

A con­tract is de­fined by Gibson in South African Mer­can­tile and Com­pany Law as:

“A law­ful agree­ment, made by two or more per­sons within the lim­its of their con­trac­tual ca­pac­ity, with the se­ri­ous in­ten­tion of cre­at­ing a legal obli­ga­tion, com­mu­ni­cat­ing such in­ten­tion, with­out vague­ness, each to the other and be­ing of the same minds as to the sub­ject-mat­ter, to per­form pos­i­tive or neg­a­tive acts which are pos­si­ble of per­for­mance”.

It fol­lows from the above that a valid con­tract must be law­ful. In this case, it must be in con­form­ity with the laws of Le­sotho and, above all else, the Con­sti­tu­tion.

When the LCD com­plains about Dr. Tha­bane’s al­leged lack of con­sul­ta­tion, they con­ve­niently do not men­tion the Con­sti­tu­tion.

They seem to have un­for­tu­nately rel­e­gated the Con­sti­tu­tion to the back-burner, which is shock­ing for se­nior politi­cians of their sta­tus.

More­over, they also con­ve­niently fail to in­form the na­tion that th­ese agree­ments all recog­nise that they will be im­ple­mented in due recog­ni­tion and ob­ser­vance of all the laws of and the Con­sti­tu­tion of Le­sotho.

In other words, th­ese agree­ments were, in no way, pur­port­ing to rel­e­gate the Con­sti­tu­tion to an in­fe­rior sta­tus or sus­pend it.

If that was the in­ten­tion of th­ese in­stru­ments, then it would be an un­for­giv­able mis­take on the part of all those politi­cians who signed them. In fact, they would be il­le­gal and void from the out­set.

Fur­ther­more, in what­ever ac­tion the prime min­is­ter has taken wherein Mr Mets­ing ar­gues he was not con­sulted, the for­mer has been abid­ing by the let­ter and spirit of the law, and more im­por­tantly, the Con­sti­tu­tion.

That is why, in all his protes­ta­tions, Mr Mets­ing never dared to go and chal­lenge the for­mer’s de­ci­sions in a court of law. He knows that he has no (legally) valid rea­sons to chal­lenge the for­mer’s de­ci­sions.

Be­ing a shrewd politi­cian, Dr Tha­bane never protested about Mr Mets­ing’s ap­point­ment of many prin­ci­pal sec­re­taries that fall un­der the ambit of his party ac­cord­ing to the coali­tion agree­ment.

In­stead, Mr Mets­ing has un­for­tu­nately al­lowed his name and party to be dragged in the mud, in the ill-con­ceived lit­i­ga­tion by At­tor­ney Gen­eral Tšokolo Makhethe KC, in su­ing His Majesty.

The less said about this un­prece­dented case the bet­ter. I rest my case on this un­for­tu­nate one, lest to ob­serve that the ut­ter­ings that they are pro­tect­ing His Majesty are in fact, a hu­mil­i­a­tion of un­prece­dented pro­por­tions.

The LCD has also con­ve­niently failed to ex­plain to the na­tion what the term tran­si­tional gov­ern­ment is.

The term tran­si­tion is de­fined as the process or a pe­riod of chang­ing from one state or con­di­tion to an­other.

In this re­gard, there­fore, the cur­rent gov­ern­ment is a con­tin­u­a­tion of the gov­ern­ment that was in­au­gu­rated in 2012 af­ter the elec- tions pro­duced a hung par­lia­ment.

If this gov­ern­ment were car­ry­ing a dif­fer­ent man­date, then cer­tainly there could have been a cabi­net re-shuf­fle with the prob­a­ble out­come of Mr Mets­ing and his LCD brethren no longer be­ing in Cabi­net.

Ac­cord­ing to the West­min­ster type of gov­ern­ment, of which Le­sotho fol­lows, the tran­si­tional ad­min­is­tra­tion comes into play only af­ter the gen­eral elec­tions and the in­stal­la­tion of a new gov­ern­ment.

That is, the pe­riod be­tween the gen­eral elec­tions and the in­stal­la­tion of a new gov­ern­ment is the tran­si­tional gov­ern­ment.

In­deed, it would be odd or ridicu­lous, and I dare say weird, to say that the man­date of the 2012 gov­ern­ment ceased to ex­ist upon the an­nounce­ment of the date of the gen­eral elec­tions.

What ceased to ex­ist was the 8th Par­lia­ment. Gov­ern­ments do not ex­ist in a vac­cum. The busi­ness of gov­ern­ment ought to pro­ceed as usual, ac­cord­ing to the Con­sti­tu­tion. That is why cabi­net still con­venes and cabi­net min­is­ters are still in of­fice.

The Prime Min­is­ter still has to con­duct busi­ness as head of gov­ern­ment and ex­er­cise his pre­rog­a­tive where the con­sti­tu­tion so em­pow­ers him.

A care­taker gov­ern­ment ex­ists only af­ter the an­nounce­ment of the gen­eral elec­tion and in­stal­la­tion of a new gov­ern­ment.

In­deed, dur­ing this pe­riod, all min­is­ters of the pre­vi­ous gov­ern­ment and prin­ci­pal sec­re­taries ex­cept the gov­ern­ment sec­re­tary and the prime min­is­ter re­main in of­fice un­til a new gov­ern­ment is moulded and sworn-in.

There­fore, the “I was not con­sulted ar­gu­ment” does not hold sway.

LCD Act­ing Spokesper­son Se­libe Mo­choboroane

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