King’s case: A landmark judgment
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
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