LCD arguments unconvincing
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