Re-write or re-read the con­sti­tu­tion?

Lesotho Times - - Opinion & Analysis - So­fonea Shale

Although le­sotho’s con­sti­tu­tion has been in force for more than two decades now, amended more than five times and five elec­tions held un­der it, its ap­pre­ci­a­tion and ap­pli­ca­tion have been prob­lem­atic.

there seems to be una­nim­ity among Ba­sotho on the need to re­visit the con­sti­tu­tion in light of chang­ing po­lit­i­cal at­ti­tudes and de­mands of the emerg­ing po­lit­i­cal so­ci­ety. How­ever, there are signs that while peo­ple may have read the con­sti­tu­tion, that may not be ad­e­quate. The ques­tion is whether Ba­sotho should re-read or re-write their con­sti­tu­tion or both.

the le­sotho con­sti­tu­tion in Sec­tion 87(1) and (2) has not been prop­erly ap­plied since its in­cep­tion. While the two sec­tions are not as clear and straight­for­ward, with lit­tle ef­fort they could be un­der­stood in spirit if not in let­ter.

In the man­ner in which th­ese sec­tions are ap­plied, it is pos­si­ble in Le­sotho to have a Prime Min­is­ter with­out know­ing whether he or she leads a po­lit­i­cal party or a coali­tion that com­mands the ma­jor­ity of mem­bers of the Na­tional As­sem­bly as the con­sti­tu­tion stip­u­lates.

The of­fi­cials have not only turned this into a cul­ture but also not taken the trou­ble to ex­plain why the con­sti­tu­tion is not ap­plied the way it di­rects.

Many Ba­sotho are not aware that the ad­vi­sory role of the for­mer Privy Coun­cil in the cur­rent con­sti­tu­tion is played by the Coun­cil of State.

This Coun­cil ad­vises the King on the 11 peo­ple to nom­i­nate as Sen­a­tors be­sides prin­ci­pal chiefs and on other key as­pects of gov­er­nance of the coun­try.

The con­sti­tu­tion has vir­tu­ally made the King un­able to ex­er­cise his mind on gov­er­nance with­out be­ing ad­vised as Sec­tion 91(1) of the con­sti­tu­tion stip­u­lates.

The re­al­ity is that many peo­ple, in­clud­ing those who are ac­tive in par­ti­san pol­i­tics, do not ap­pre­ci­ate this pro­vi­sion. Some be­lieve that the King should not have any in­de­pen­dent say while oth­ers be­lieve that politi­cians have been given the power they wanted and proven their in­abil­ity to hold the na­tion to­gether.

Be­tween the two, the con­tention is that there should not be any changes on the King’s role and pow­ers while oth­ers want more pow­ers for the King. Per­haps a mid­dle-ground en­gage­ment on this is­sue may be help­ful.

Does the Coun­cil of State, which ad­vices the King as a means of pro­tect­ing him from po­ten­tial hu­man er­rors that politi­cians nor­mally do and get pun­ished at elec­tions do its work ef­fec­tively? The Coun­cil of State is made of 14 mem­bers of whom only four, namely two Mem­bers of Par­lia­ment (MPS), a prin­ci­pal chief and a mem­ber of the legal pro­fes­sion are im­mune from the Prime Min­is­ter’s di­rect or in­di­rect in­flu­ence.

In the ap­point­ment of Com­mis­sioner of Po­lice, Com­man­der of Army, At­tor­ney Gen­eral, two judges of the High or Ap­peal Court or re­tired judge as ap­pointed by the King act­ing on the ad­vice of Chief Jus­tice, the Speaker, all of whom are mem­bers of the Coun­cil with the Prime Min­is­ter, the in­flu­ence of the Pre­mier can be eas­ily traced.

The ob­jec­tiv­ity on the ap­pli­ca­bil­ity of ad­vi­sory pow­ers be­stowed on the Coun­cil of State such as ad­vis­ing the King to ap­point the Prime Min­is­ter, ac­cept or refuse the Prime Min­is­ter’s ad­vice to dis­solve par­lia­ment in the event that the Pre­mier has lost the vote of con­fi­dence in the Na­tional As­sem­bly, is highly com­pro­mised by this com­po­si­tion.

Can the Coun­cil so com­posed re­ally ad­vise the Prime Min­is­ter even if need be? Sec­tion 91 (2) and (3) pro­vide that where the King had not acted in line with the ad­vice ei­ther of the Coun­cil of State or Prime Min­is­ter as pro­vided by the Con­sti­tu­tion, any of the two au­thor­i­ties can per­form that duty on their own and re­port to par­lia­ment at their ear­li­est con­ve­nience and it would be deemed to have been done by the King.

The ques­tion here could be whether there is a need for more power to the King di­rectly or a need to re­struc­ture or re­com­pose the Coun­cil of State. Should Ba­sotho re-read or re-write their con­sti­tu­tion or both?

Per­haps an­other ex­am­ple of the con­sti­tu­tional pro­vi­sion which many could have ei- ther not been aware of or over­looked would make the ques­tion even more rel­e­vant.

Sec­tion 53 of the Con­sti­tu­tion em­pow­ers the Prime Min­is­ter to pro­pose the re­moval of the King to par­lia­ment as and when he or she be­lieves that the in­cum­bent has com­mit­ted an act that makes Him no longer fit to hold the Of­fice of the King.

This pro­posal has to be ac­cepted by the two houses and if they dif­fer, the res­o­lu­tion of the Na­tional As­sem­bly shall pre­vail. Is this not mak­ing the King vul­ner­a­ble to politi­cians?

Is it part of the re­forms of the con­sti­tu­tion that Ba­sotho are think­ing of or one of the sec­tions that politi­cians have made it a point that Ba­sotho never visit? In fact, the ques­tion is should Ba­sotho re-write or re-read their con­sti­tu­tion or both?

Although the con­sti­tu­tion com­pels the Prime Min­is­ter and Min­is­ters to re­port ev­ery work of gov­ern­ment to the King and that the King may de­mand such in terms of Sec­tion 92, for all in­tents and pur­poses, Le­sotho is not only a con­sti­tu­tional monarch but also a King­dom whose cer­e­mo­nial head of state can­not me­di­ate even when so re­quired.

Is the Coun­cil of State in any po­si­tion to ad­vise the King on how to deal with trou­bles that nor­mally war­rant the at­ten­tion of politi­cians of other coun­tries un­der the aus­pices of mul­ti­lat­eral or­gan­i­sa­tions?

There are sev­eral other ex­am­ples that would be given in the next ar­ti­cles but this ques­tion is im­por­tant right now be­cause many peo­ple who would oth­er­wise be can­vassed to vote for changes they would not have voted for had they got time to read con­sti­tu­tion and un­der­stand it.

While con­sti­tu­tional re­forms are com­pelling, the new or amended con­sti­tu­tion would still be a re­flec­tion of politi­cians and not the peo­ple un­less peo­ple know and un­der­stand their con­sti­tu­tion.

His Majesty King Let­sie iii

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