Re-write or re-read the constitution?
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