THE Constitutional Court has dealt the reforms process a heavy blow by nullifying the constitutional amendments which were recently passed by the recalled parliament and gazetted into law by His Majesty, King Letsie III.
The court also nullified all other laws which were gazetted into law after their approval by the recalled parliament.
The court bench comprising of Chief Justice Sakoane Sakoane and Justices Tšeliso Monapathi and 'Mafelile Ralebese this week ruled that the King had been "ill-advised" by the Council of State to recall parliament to approve the constitutional amendments.
The court ruled that there was no threat to lives to justify the state of emergency which was declared on 16 August and used as a basis for recalling parliament to approve the amendments.
The judgement was handed down in response to a consolidated application by lawyer, Lintle Tuke, and journalist-cum-activist, Kananelo Boloetse. Law and Justice Minister Lekhetho Rakuoane has since lodged an appeal against the decision in the Court of Appeal.
Adv Tuke and Mr Boloetse had initially filed applications arguing that there was no calamity or disaster in Lesotho that warranted the declaration of a state of emergency which paved the way for the recall of parliament to pass the constitutional amendments.
In any event, a parliament recalled to deal with an emergency was only limited to taking measures to deal with the emergency. Approving constitutional amendments was not part of its responsibilities. It had no powers to transact any other business including approving the constitutional amendments, Adv Tuke and Mr Boloetse had argued.
Hence the constitutional amendments that were subsequently gazetted into law by His Majesty were illegal and of no force, they had argued.
Prime Minister Moeketsi Majoro had on 16 August 2022 gazetted a notice declaring a state of emergency in Lesotho as the only tool available for him to get King Letsie III to recall the 10th parliament after its dissolution at midnight on 13 July 2022, after it had completed its five-year tenure. This would then enable it to pass the much-delayed reform bills ahead of the 7 October 2022 general elections.
The King subsequently gazetted the recall of parliament from 22 to 29 August 2022 to pass the bills giving effect to some of the constitutional reforms recommended by SADC in 2016 to help end perennial instability in Lesotho.
The recalled parliament approved the constitutional amendments on 29 August. This paved the way for the King to gazette the new act on 31 August. It is titled Tenth Amendment to the Constitution Act, 2022.
Reading the judgement on behalf of the court bench this week, Justice Sakoane said they had found that His Majesty had been ill-advised by the Council of State to recall the parliament to approve the constitutional amendments and other acts.
The chief justice said there was no danger which had necessitated the recall of parliament under the guise of dealing with an emergency. What had simply happened was that parliament had delayed approving the constitutional amendments until its term expired. This did not create an emergency to warrant its recall. The task of resuscitating and approving the amendments as well as enacting other laws now fell with the parliament which would be inaugurated after next month's elections, the top judge said.
"The applicants are right in their contention that parliament was simply beaten to time," Justice Sakoane said.
"This could have been avoided if parliament prioritised passing of the bills over other legislative business. Failure by parliament to pass the bills by 14 July when the proclamation to dissolve it was gazetted had an effect of annulling and cancelling them for good. They became corpses which a declaration of a state of emergency could not resurrect to be the legislative business of a recalled parliament...
"The business of a recalled parliament is to debate and pass resolutions and not legislate. I am fortified in this view that the effect of a dissolution of parliament is to terminate all its pending bills. It does not preserve them in a legislative fridge to be opened if parliament is recalled. A recalled parliament does not have jurisdiction and authority to resurrect business killed and buried by its dissolution.
"The failure by the 10th parliament to pass the bills falls far too below the threshold of being a public emergency that threatens the life of a nation. There is merit in the applicants' contention. The imperative of passing of the bills has to be left to the 11th parliament (after the elections)."
Justice Sakoane said the King had not erred by recalling parliament; he had simply been ill-advised by the Council of State.
"His Majesty has been ill-advised. The blame should be put at the door of the Council of State. The King does not err but is caused to do so by his advisers.
"It is in my respectful opinion that the recalled parliament stands dissolved... The more we bend the constitution to become a vehicle for what some want or try to turn it into a vessel for a particular view of what society should be, the more we discredit it making it much more difficult for it to serve us. A constitution cannot achieve what politics cannot deliver.
"It is in the nature of democracy that parliament passes some bills and fails to deliver others on time. This (failure to pass some bills) does not constitute an emergency at all, irrespective of expectations or interest in the bill. The disappointment when a bill of popular interest fails to be passed into law cannot be equated to an eminent threat to the life of a nation.
"The notion that when parliament fails to do its job efficiently and on time thereby constitutes a public emergency is misplaced. Section 23(1) of the constitution which provides the power and purpose to declare a state of emergency is certainly devalued if resorted to for such tenuous reasons. If this important power can be exercised for such reasons, the country is put on a slippery slope towards rule by state of emergencies," the chief justice said.
He acknowledged the importance of the implementation of the multi-sector reforms, saying because the dissolved parliament had failed to pass the necessary laws, the task would now fall to the 11th parliament to be constituted after next month's elections.
"The national reforms project is a journey and not an event. The destination is an attainment of all the objectives of the national reforms. It is therefore in the national interest that the reforms project continues in the next administration for the bills not passed by the 10th parliament to be before the 11th parliament soon to be borne after the general elections which are just around the corner," Justice Sakoane said.
He said Adv Tuke and Mr Boloetse's application was "a victory for constitutionalism and the rule of law".
"They (applicants) defended the constitution in the interests of the public.
"In the result the following order is made: The declaration of state of emergency by the prime minister is declared null and void; the recall of the 10th parliament to pass the bills is outside the powers of His Majesty; the recalled parliament has no constitutional authority to debate and pass the bills," Justice Sakoane ordered.
Both Adv Tuke and Mr Boloetse have welcomed the court judgement.
Speaking at a press conference hosted by the Media Institute of Southern Africa-Lesotho (MISA) at its offices in Maseru yesterday, Adv Tuke said he had filed the court challenge because he was convinced that the dissolved 10th parliament ought not to have been recalled.
He said now that the government had indicated its intention to appeal the judgement, he was ready to oppose its application.
"I'm ready to defend the rule of law in the Court of Appeal," Adv Tuke said.
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Mr Boloetse concurred, saying there was no justification for a state of emergency to recall the 10th parliament to approve the reforms bill which had it failed to do during its tenure. He said the reforms business could still be concluded by the parliament which will be installed after the polls.
Like Adv Tuke, he said he was prepared to defend their Constitutional Court victory in the apex court.
Law Society President, Tekane Maqakachane, who has a pending similar application, has hailed the Constitutional Court judgement.
"We note with great interest and relief the Court's decision declaring the Declaration of the state of emergency, the recall of the 10th parliament and any business conducted by the recalled parliament as unconstitutional, null and void ab initio (from the beginning).
"The net consequence of the decision is that all laws passed by the recalled parliament and assented to by His Majesty are not law," Adv Maqakachane said.
Other laws that had been approved by the recalled parliament and gazetted by the King have also been nullified by the court decision. These are Millennium Challenge Account Lesotho Authority (Winding Up and Repeal) Act; the Specified Officers Defined Contribution Pensions Fund (Amendment) Act; the Public Officers' Defined Contribution Pension Fund (Amendment) Act; the Harmonization of the Rights of Customary Widows with Legal Capacity of Married Persons Act and the Metolong Authority (Amendment) Act.
Adv Maqakachane said the Law Society would not rush into withdrawing its own application in case the government appeals Adv Tuke and Mr Boloetse's victory.
Law and Justice Minister Lekhetho Rakuoane was not reachable for comment regarding whether or not the government would challenge the decision.
