The AG’S case never changed the con­sti­tu­tion?

Lesotho Times - - Leader - So­fonea Shale

THE ill-fated chal­lenge by At­tor­ney Gen­eral (AG) Tšokolo Makhethe of the ap­point­ment of Jus­tice Kananelo Mos­ito as pres­i­dent of the Court of Ap­peal was an in­ter­est­ing test case for stu­dents of law and po­lit­i­cal science scholars. Af­ter the de­ci­sion to val­i­date Jus­tice Mos­ito’s post, some peo­ple de­manded the res­ig­na­tion of the AG, ex­press­ing doubts about his suit­abil­ity to hold the of­fice. Some even ac­cused him of be­ing a politi­cian and not a public ser­vant and saw the fi­nal­ity of the mat­ter as a vic­tory for for­mer premier Thomas Tha­bane.

Oth­ers found the de­ci­sion as a dis­rup­tion of what they had al­ready de­vel­oped as an in­ter­pre­ta­tion of the Le­sotho con­sti­tu­tion in the con­text of coali­tion gov­er­nance. Crit­i­cal for learn­ers is the fu­ture of the AG’S of­fice while observers ask with a sigh of re­lief whether none of the im­pli­cated sec­tions of the Le­sotho Con­sti­tu­tion had been changed?

The Court of Ap­peal made up of Jus­tices Brand, Cachalia, Maya, Shongwe and Wal­lis heard the ap­peal by AG Makhethe on the mat­ter that was de­cided by Judges Musi, Pot­ter­ill and Mathopo all act­ing as judges of these courts. At both lev­els of the case, the haunting ques­tion has been whether the con­sti­tu­tion of Le­sotho and per­haps its spirit would be safe­guarded.

While this may not be the first time and per­haps not the last, the ques­tion re­mains of why this re­liance on oth­ers? Ba­sotho would re­call that the ap­point­ment of Dr Mos­ito as Court of Ap­peal pres­i­dent was met with many chal­lenges in­clud­ing the res­ig­na­tion of Ap­peal Court judges, one of whom was then act­ing pres­i­dent. He ex­pressed dis­con­tent over the fact that he was not ap­pointed for the po­si­tion.

A valid ex­pla­na­tion is needed to un­der­stand why such a sig­nif­i­cant or­gan of gov­er­nance in Le­sotho is so flex­i­ble? No non-mosotho can be a Mem­ber of Par­lia­ment (MP) while even a Mosotho with vot­ing rights who is not an MP may not be a mem­ber of cab­i­net. Why can the Court of Ap­peal pres­i­dent be a non-mosotho? Why can the con­sti­tu­tional court be com­posed of for­eign­ers? How re­spect­ful to Ba­sotho as a sov­er­eign peo­ple has the po­lit­i­cal de­ci­sion on that mat­ter been? Surely there was wis­dom in con­sti­tut­ing the court with peo­ple who may in­ter­pret the law but who would be seen to be emo­tion­ally de­tached from the out­come of the case but what are the im­pli­ca­tions?

Where does that leave Le­sotho’s ju­di­ciary? Should Ba­sotho know and ac­cept that they have not yet given birth to the ju­di­cial and le­gal com­pe­tence nec­es­sary for some cases in this King­dom? Per­haps it could be asked whether Le­sotho will have an es­tab­lished Con­sti­tu­tional Court to in­ter­pret the con­sti­tu­tion par­tic­u­larly while for politi­cians the con­sti­tu­tion can mean this to­day and mean a dif­fer­ent thing the fol­low­ing day.

Maybe for the stu­dents of law there is noth­ing amiss about this sit­u­a­tion but surely to politi­cians who lead this coun­try and who at one in­stance re­fer to sovereignty as their right to act not in the way oth­ers may wish to dic­tate, there must be. If the po­lit­i­cal lead­er­ship is also not con­cerned, then it is the ques­tion of lead­er­ship poverty. It would not be the in­ten­tion of this col­umn to un­der­mine the in­tel­li­gence of the es­teemed judges but Ba­sotho should talk about it.

When the court of ap­peal refers to the pow­ers of the King to ap­point chief elec­toral of­fi­cer in terms of 138(1) and the Con­stituency De­lim­i­ta­tion Com­mis­sion in terms of Sec­tion 66(1) sec­tions which have long been amended one could ex­cuse them, what else could they say while the SADC Fa­cil­i­ta­tor and other highly re­garded ex­perts of Le­sotho gov­ern­ment nor­mally do the same? Does this make lawyers in this King­dom proud? What about politi­cians and the peo­ple?

Though the Court of Ap­peal agreed with the AG against Dr Tha­bane that the mat­ter of in­ten­tion to ad­vice the King to ap­point Jus­tice Mos­ito was dis­cussed in cab­i­net, it did not grant him what he prayed for. By up­hold­ing the de­ci­sion of the Concourt that the ap­point­ment of the Court of Ap­peal pres­i­dent in terms of Sec­tion 124(1) of the Con­sti­tu­tion was cor­rect, the Ap­peal Court pro­tected this Sec­tion against the im­pli­ca­tion con­tained in the prayers of the AG.

If the gen­er­al­ity of the prin­ci­ple of col­lec­tive re­spon­si­bil­ity was granted to AG, the essence of com­man­der­ship of the se­nior min­is­ter would have been re­duced to a lame prime min­is­ter. The Court of Ap­peal also cor­rected the Concourt in its di­lu­tion of the prime min­is­ter’s ad­vi­sory role to the King. Con­trary to the Concourt as­ser­tion that the prime min­is­ter can only be com­pelled to con­sult cab­i­net on pol­icy mat­ters, the Ap­peal Court was firm that the law has made its own pro­vi­sions not on pol­icy mat­ters. Though the Ap­peal Court has re­jected the de­ci­sion of the Concourt that the AG has got no le­gal stand­ing to do what he has done, it has it­self re­fused to de­cide.

This de­ci­sion says two or three main things. First, the prime min­is­ter has the right to ex­er­cise pow­ers be­stowed to him or her by the con­sti­tu­tion with­out con­sti­tu­tional obli­ga­tion to con­sult cab­i­net. Does it, there­fore, mean that the prime min­is­ter can do as he or she wishes in terms of ad­vis­ing the King re­gard­less of what oth­ers say, ei­ther in a coali­tion of sin­gle party gov­ern­ment?

If he or she does, such be­hav­iour may not be pun­ish­able by law but surely will not be im­mune from po­lit­i­cal chas­tise­ment. This brings back the most un­pop­u­lar yet clear state­ment of fact that gov­er­nance is not law rather law and the art of its ap­pli­ca­tion. Se­condly, the Sec­tion 124(1) and the sim­i­lar Sec­tions of the con­sti­tu­tion which em­pow­ers the prime min­is­ter to be one of the ad­vis­ers of the King have not been amended by the gen­er­al­ity of the prin­ci­ple of col­lec­tive re­spon­si­bil­ity.

This means that even the mean­ing of Sec­tion 88 that cab­i­net is col­lec­tively re­spon­si­ble to par­lia­ment on its ad­vice to the King re­mains un­changed and does not mean the re­moval of the prime min­is­ter from the list of ad­vis­ers of the King. Thirdly, in terms of Sec­tion 98(2) (c) the AG has a le­gal stand­ing to do as he has done. How­ever, the ap­peal ad­mits dan­gers in the man­ner in which the sec­tion is writ­ten and the court may want to hear de­bates on it on a sep­a­rate case. Laws are bet­ter done by par­lia­ment, so it should be upon par­lia­ment to amend AG Of­fice law to give per­spec­tive to this con­sti­tu­tional pro­vi­sion. This con­sti­tu­tional pro­vi­sion should be left un­touched but be elab­o­rated in the Act of par­lia­ment.

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