Mo­sisili not un­touch­able: An­a­lysts

Lesotho Times - - News - Lekhetho Nt­sukun­yane

DEMO­CRATIC Con­gress (DC) leader Pakalitha Mo­sisili is vested with “too much” con­sti­tu­tional power although this power is not ab­so­lute as to ren­der him “un­touch­able,” an­a­lysts have said.

Sec­tion 5.3.1 of the DC Con­sti­tu­tion states that the leader is a pin­na­cle of the party, “but he is not above the party it­self or its gen­eral or lead­er­ship con­fer­ences.”

This clause, ac­cord­ing to con­sti­tu­tional law ex­pert Ad­vo­cate Hoolo ’Nyane, shows that Dr Mo­sisili does not wield ab­so­lute power within the party.

“He is sub­ject to the or­gan­i­sa­tion and this is the prin­ci­ple that sup­presses ab­so­lutism in terms of com­par­isons of pow­ers within the DC,” said Ad­vo­cate ’Nyane who is also a lec­turer at the Na­tional Univer­sity of Le­sotho (NUL).

Ad­vo­cate ’Nyane and other an­a­lysts’ com­ments fol­low the re­cent stand­off be­tween the DC’S Na­tional Ex­ec­u­tive Com­mit­tee (NEC) and Dr Mo­sisili who is party leader as well as NEC pres­i­dent, which was trig­gered by fac­tional bat­tles for con­trol of the party.

The party is split into the Lithope (loosely trans­lated to mean girl­friends) and the Liru­rubele (but­ter­flies) fac­tions with the for­mer throw­ing its full weight be­hind Dr Mo­sisili while the lat­ter has crys­tallised around deputy leader Monyane Moleleki.

The Liru­rubele fac­tion en­joys greater sup­port in the NEC and the youth league ex­ec­u­tive com­mit­tee, while the Lithope fac­tion en­joys more sup­port from the women’s league ex­ec­u­tive com­mit­tee.

The DC’S NEC re­solved on 10 Novem­ber 2016 to with­draw the party from the seven-mem­ber coali­tion gov­ern­ment cit­ing its fail­ure to ad­dress cor­rup­tion among other is­sues and di­rected its mem­bers to re­sign their cabi­net po­si­tions in­clud­ing Dr Mo­sisili who is prime min­is­ter.

How­ever, this was re­jected by Dr Mo­sisili and his fol­low­ers on grounds that proce- dures were vi­o­lated.

But since then, only five DC min­is­ters and deputy min­is­ters, namely Mr Moleleki, Mokhele Mo­let­sane, Ralechate ’ Mokose, Kotiti Li­holo and ’ Man­thabiseng Phohleli have re­signed.

Fol­low­ing Dr Mo­sisili’s re­sis­tance, the NEC on 16 Novem­ber 2016, wrote him a let­ter to show cause why it could not sus­pend him pend­ing his ap­pear­ance be­fore a dis­ci­plinary com­mit­tee.

He re­tal­i­ated by is­su­ing let­ters of sus­pen­sion to some NEC mem­bers and fur­ther called for a spe­cial con­fer­ence from 2 to 4 De­cem­ber 2016, in a bid to dis­ci­pline the NEC and bring to an end the in­fight­ing.

In light of these de­vel­op­ments, Ad­vo­cate ’Nyane said “on prin­ci­ple,” the NEC acted within its rights to with­draw the DC from the gov­ern­ment.

“The ques­tion is whether the NEC has pow­ers to do that. Con­tes­ta­tion is that the party’s gen­eral or spe­cial con­fer­ence is the one that can come up with such a de­ci­sion. Also the is­sue is that the leader should have been present when a de­ci­sion by the NEC to with­draw the party was made.

“But if you look at the pow­ers and ob­jec­tives of the NEC in terms of the party con­sti­tu­tion, you will re­alise that the com­mit­tee has some im­mense pow­ers in be­tween the party con­fer­ences. Though the sig­na­ture of the leader is the one that ap­pears in the coali­tion agree­ment; a de­ci­sion was made by the NEC on be­half the party to sign the coali­tion agree­ment. The coali­tion agree­ment is an agree­ment be­tween par­ties, not lead­ers. So in prin­ci­ple, the NEC is right to ter­mi­nate the agree­ment,” Ad­vo­cate ’Nyane said.

He said the NEC held the power of the party in be­tween the con­fer­ences, adding, “In other words, where we have the party as one of the struc­tures within the DC, its gen­eral roles would be over­seen by the NEC”.

He said NEC acted on be­half of the party and there were no spe­cific re­quire­ments stip­u­lated in the con­sti­tu­tion that to the ef­fect that cer­tain de­ci­sions should be re­ferred to the gen­eral con­fer­ence.

“So when we talk about the party in be­tween the con­fer­ences we are talk­ing about the NEC,” Ad­vo­cate ’Nyane said.

How­ever, he said the NEC did not have the power to sus­pend Dr Mo­sisili as he was not just an or­di­nary mem­ber of the party.

“They (the NEC) are treat­ing the leader like an or­di­nary mem­ber of the party yet the leader is ac­tu­ally an­other struc­ture in the DC, not an or­di­nary mem­ber,” he said, adding in other is­sues the NEC could make de­ci­sions even in the ab­sence of the leader as long as they con­sti­tuted a quo­rum.

“But the ques­tion arises where they want to sus­pend the leader.

“That is a bit prob­lem­atic be­cause it tests pow­ers be­tween the two con­sti­tu­tional struc­tures, namely the NEC and the leader. The leader is part of the NEC but he is also an in­de­pen­dent struc­ture. So the way they ap­proach that struc­ture can­not be the same as the way they can ap­proach an or­di­nary mem­ber.

As we study the con­sti­tu­tion, there is no clause which says the NEC can dis­ci­pline the leader.”

He said be­fore rush­ing to ‘dis­ci­pline’ Dr Mo­sisili, the NEC should have first con­sulted sec­tions in the party con­sti­tu­tion “which re­late to how this struc­ture (the leader) gets into of­fice, how it is dealt with and how it is ter­mi­nated.”

“The con­sti­tu­tion seems to give con­sid­er­able pow­ers to the of­fice of the leader, which can­not sim­ply be dis­re­garded and be called an or­di­nary mem­ber.

They (NEC) need to go to sec­tions that deal with that struc­ture and the re­la­tion­ship be­tween that struc­ture of pres­i­dent and the NEC; how they in­ter­re­late; what are the reme­dies pro­vided to each struc­ture when ei­ther of these struc­tures has de­faulted or breached some prin­ci­ple of the party,” Ad­vo­cate ’Nyane said, adding, “The NEC rushed to hit the leader when those pow­ers do not seem to come up clearly from the con­sti­tu­tion”.

For his part, prom­i­nent po­lit­i­cal an­a­lyst from the NUL, Nthak­eng Pheello Selinyane

said Dr Mo­sisili should not be re­garded as the “Holy Fa­ther in the Catholic or­der” but he should act in con­sul­ta­tion with the NEC.

He said with­out the NEC, Dr Mo­sisili’s pow­ers were lim­ited.

How­ever, Mr Selinyane was quick to point out that Dr Mo­sisili, un­like the NEC, in­voked a par­tic­u­lar sec­tion 5.3.1 of the DC con­sti­tu­tion “where it specif­i­cally pro­vides that he can sus­pend any mem­ber in the NEC who ap­pears to desta­bilise the party”.

“The sec­tion fur­ther says the leader can only ar­rive at that de­ci­sion af­ter such a mem­ber has been given a plat­form to be heard. This sec­tion specif­i­cally gives the leader pow­ers to sus­pend NEC mem­bers. But the same pow­ers do not seem to exist for the NEC to take a dis­ci­plinary ac­tion against the leader,” Mr Selinyane said.

Mr Selinyane said while it ap­peared Dr Mo­sisili had far-reach­ing pow­ers be­cause the leader was also de­scribed as the pin­na­cle of the party, he was nev­er­the­less “not un­touch­able” as the same con­sti­tu­tion fur­ther stated that he is not above the party and the gen­eral and lead­er­ship con­fer­ences.

Mr Selinyane and Ad­vo­cate ’ Nyane con­curred that by calling the spe­cial con­fer­ence, Dr Mo­sisili acted within his pow­ers, but it ap­peared from the con­sti­tu­tion that the agenda of the con­fer­ence has to be tabled by the NEC.

“His part will just be to make an open­ing speech and then the NEC takes over. It ap­pears from the con­sti­tu­tion that ir­re­spec­tive of how the con­fer­ence orig­i­nated the NEC would still ta­ble the agenda to the con­fer­ence,” Ad­vo­cate ’Nyane said.

He said Dr Mo­sisili and his fol­low­ers should be ad­vised not to “fall into the trap” of ex­clud­ing the NEC in the com­ing con­fer­ence “be­cause the com­mit­tee is key”.

“How they are go­ing to work is some­thing else. Some­thing which is also key is sec­tion 3.2.6 which refers to a mo­tion of no con­fi­dence in the NEC. Even in this in­stance there is a pro­ce­dure to be fol­lowed and the mo­tion can­not just erupt spon­ta­neously in the con­fer­ence,” Ad­vo­cate ’Nyane said.

Both an­a­lysts said the DC is­sues were “po­ten­tially liti­gious, adding this meant the fi­nal in­ter­pre­ta­tion lay with the courts of law.

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