King’s case: A land­mark judg­ment

Lesotho Times - - Opinion & Analysis - Ut­loang Ka­jeno

ON Thurs­day, 11 June at 11 am on a foggy, win­try bit­terly cold and rainy morn­ing, a rel­a­tively huge pub­lic gallery au­di­ence as well as lawyers gath­ered in the main court­room one, Palace of Jus­tice, to lis­ten to the de­liv­ery of judg­ment in the hugely im­por­tant case that would set the bench­march on how govern­ment busi­ness in Le­sotho would be con­ducted within govern­ment and, more im­por­tantly, how His Majesty and the prime min­is­ter should in­ter­act in con­duct­ing the busi­ness of govern­ment.

Cer­tainly this was no or­di­nary case as the ten­sions were pal­pa­ble for ev­ery­one to fathom. The case in ques­tion was Court of Ap­peal (Civil) 13/2015 or Con­sti­tu­tional Case 02/2015.

It in­volved the at­tor­ney gen­eral (AG) su­ing His Majesty, the prime min­is­ter and four oth­ers. In­deed, to set the ex­pec­ta­tions even higher, there were banks of tele­vi­sion cam­eras and a host of blue riband me­dia per­son­al­i­ties to pro­vide wall-to-wall cov­er­age of the judg­ment. The oc­ca­sion never dis­ap­pointed.

Briefly, the AG in this un­prece­dented case, did not ac­cept that the ap­point­ment of the pres­i­dent of the Court of Ap­peal, the high­est in the land, by His Majesty fol­low­ing the ad­vice of the prime min­is­ter in terms of sec­tion 124 (1) of the 1993 Con­sti­tu­tion which pro­vides: “The Pres­i­dent shall be ap­pointed by the King on the ad­vice of the Prime Min­is­ter”. “The AG’S con­tentions de­pended on the prin­ci­ple of col­lec­tive cabi­net re­spon­si­bil­ity em­bod­ied in the Con­sti­tu­tion of Le­sotho.

The rel­e­vant pro­vi­sion is sec­tion 88 of the Con­sti­tu­tion which ren­dered the ap­point­ment con­sti­tu­tion­ally flawed be­cause the AG ar­gued, Cabi­net had not been in­formed of the pos­si­ble ap­point­ment and its views on it were nei­ther sought nor ob­tained”.

For their part, the coun­sel for the King, prime min­is­ter and oth­ers, con­tended that no con­sti­tu­tional obli­ga­tion, even if the mat­ter was never placed be­fore cabi­net, rested on the prime min­is­ter, to place the mat­ter be­fore cabi­net.

They also ar­gued that the AG had no lo­cus standi to sue his own govern­ment, client, as he was the govern­ment’s chief law of­fi­cer and sat in cabi­net meet­ings. The AG, how­ever, ar­gued that it was his con­sti­tu­tional duty to up­hold and de­fend the Con­sti­tu­tion where he felt it was be­ing vi­o­lated.

Be­cause of the mag­ni­tude of the case and its con­sti­tu­tional im­pli­ca­tions on gov­er­nance, ac­count­abil­ity and how govern­ment inte se should con­duct busi­ness, I con­sid­ered it de­sir­able, as the judg­ment did, to quote the rel­e­vant con­sti­tu­tional pro­vi­sions so that the reader may fully ap­pre­ci­ate the im­por­tance of the case.

These are sec­tions 86, 88(1) to (3) and 91 (1) which read as fol­lows:

’86 The ex­ec­u­tive au­thor­ity of Le­sotho is vested in the King and, sub­ject to the pro­vi­sions of this Con­sti­tu­tion, shall be ex­er­cised by him through of­fi­cers or au­thor­i­ties of the Govern­ment of Le­sotho.

88(1) There shall be a Cabi­net of Min­is­ters, con­sist­ing of the Prime Min­is­ter and the other Min­is­ters.

(2) The func­tions of the Cabi­net shall be to ad­vise the King in the govern­ment of Le­sotho, and the Cabi­net shall be col­lec­tively re­spon­si­ble to the two Houses of Par­lia­ment for any ad­vice given to the King by or un­der the gen­eral au­thor­ity of the Cabi­net and for all things done by or un­der the au­thor­ity of any Min­is­ter in the ex­e­cu­tion of his of­fice.

(3) The pro­vi­sions of sub­sec­tion (2) shall not ap­ply in re­la­tion to:

a) The ap­point­ment and re­moval from of­fice of Min­is­ters and As­sis­tant Min­is­ters, the as­sign­ment of re­spon­si­bil­ity to any Min­is­ter un­der sec­tion 89 of this Con­sti­tu­tion or, save in cir­cum­stances set out in the pro­vi­sion to sec­tion 90(3) the au­tho­riza­tion of another Min­is­ter un­der sec­tion 90 of this Con­sti­tu­tion to ex­er­cise the func­tions of the Prime Min­is­ter dur­ing the lat­ter’s ab­sence or ill­ness; or

b) The dis­so­lu­tion or pro­ro­ga­tion of Par­lia­ment. 91(1) sub­ject to the pro­vi­sions of sec­tion 137 (4) of this Con­sti­tu­tion, the King shall, in the ex­er­cise of his du­ties un­der this Con­sti­tu­tion or any other law, act in ac­cor­dance with the ad­vice of the cabi­net or a Min­is­ter act­ing un­der the gen­eral au­thor­ity of the Cabi­net ex­cept in cases where he is re­quired by this Con­sti­tu­tion or any other law act in ac­cor­dance with the ad­vice of any per­son or au­thor­ity other than the Cabi­net.

How­ever, an ob­ser­va­tion needs to be made at this junc­ture, that in spite of its un­doubted huge ju­rispru­den­tial value to Le­sotho and in­deed world­wide, in coun­tries with sim­i­lar con­sti­tu­tions and West­min­ster model of govern­ment, it was nearly clouded by the spec­tre of pol­i­tics that en­snare our frag­ile democ­racy.

These were among oth­ers, that the AG ini­tially al­leged that the former prime min­is­ter, in rec­om­mend­ing the ap­point­ment, was mo­ti­vated by im­proper mo­tives and lack of bona fides. For­tu­nately, how­ever, this ar­gu­ment was not per­sisted with in court. Fur­ther­more, some politi­cians at the time, rode on the wave of the huge pub­lic out­cry that was stoked-up by the me­dia, that the AG was in fact su­ing the King, whereas this was only a pro­ce­dural, al­beit, un­prece­dented step.

This un­for­tu­nate per­cep­tion was fur­ther in­cited by the AG him­self be­cause, dur­ing all his many years in of­fice and de­spite the previous govern­ment on sev­eral oc­ca­sions vi­o­lat­ing the Con­sti­tu­tion, he never even once raised a word that that govern­ment was vi­o­lat­ing the con­sti­tu­tion.

This de­spite his duty ac­cord­ing to sec­tions 98 (2) (c) em­pow­er­ing him to take nec­es­sary le­gal mea­sures for the pro­tec­tion and up­hold­ing of this Con­sti­tu­tion and the other laws of Le­sotho. How­ever, as the say­ing goes: “Ev­ery cloud has a sil­ver lin­ing”.

Hav­ing been dis­missed at the Con­sti­tu­tional Court, the AG went to ap­peal but was also dis­missed. The ra­tio de­ci­dendi, the prin­ci­ple of law on which the court reached its de­ci­sion were multi-faceted. How­ever, the court went on to state in­stances which in­evitably mer­ited col­lec­tive cabi­net re­spon­si­bil­ity for the Cabi­net to adopt, iden­tity with and de­fend, in pub­lic af­ter re­fer­ral by the prime min­is­ter or the re­spon­si­ble min­is­ter be­fore Cabi­net. The Court noted, how­ever, that there are

Con­tin­ued on Page 24 . . .

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