The Nqosa Mahao-led faction of the All Basotho Convention (ABC) and their opposition allies have received a massive boost from the Attorney General, Advocate Haae Phoofolo, in their quest to topple ABC leader and Prime Minister Thomas Thabane. This after Adv Phoofolo issued a legal opinion saying they were within their rights to file a no confidence motion against the embattled premier who has only been at the helm of government for two years following the ABC's victory in the 3 June 2017 snap elections.
The ABC's Koro-koro legislator, Motebang Koma, filed the no confidence motion in parliament on 5 June 2019. The motion was immediately seconded by the Democratic Congress (DC)'s deputy leader Motlalentoa Letsosa.
Mr Koma proposed that the ABC's Mosalemane constituency Member of Parliament (MP), Samuel Rapapa, takes over as caretaker prime minister presumably pending processes that would lead Prof Mahao to assume the reins of power.
The no confidence motion is the culmination of the protracted war of attrition between the newly elected national executive committee (NEC) of the ABC fronted by Prof Mahao and the old NEC which has steadfastly refused to vacate office. Prof Mahao is not a legislator and could therefore not be nominated to replace Dr Thabane despite his election as the latter's deputy at the party's contentious February 2019 elective conference.
Much to the chagrin of the pro-Mahao legislators and their opposition allies, parliament was indefinitely adjourned in June this year, without a vote on the motion. This after the Speaker of the National Assembly, Sephiri Motanyane, ruled that the motion did not meet "procedural and constitutional requirements" for it to be accepted. He said the motion ought to have been filed by the opposition and not by Mr Koma, an ABC legislator. He also said the motion was flawed in that it proposed ABC MP Mr Rapapa as the caretaker prime minister instead of an opposition leader.
"In terms of parliamentary procedure, it is the opposition that files a motion expressing lack of confidence in the government.
"I am not being naughty in saying that Ntate Koma, the proposer of the motion, is part of the government. Even the nominee for the caretaker prime minister's post, Honourable Rapapa is part of the government. I have not seen that in my long years in parliament," Mr Motanyane said in June in remarks that have now been trashed by Adv Phoofolo.
The speaker had told the national assembly that he would seek Adv Phoofolo's legal opinion before ruling on the admissibility of the motion.
And in the latest turn of events, Adv Phoofolo has given the motion the thumbs up. Last night Mr Motanyane acknowledged receiving Adv Phoofolo's legal opinion on the issue and said Mr Koma was free to proceed with his motion if he so wished.
"It is necessary to seek the Attorney General's legal advice whenever there are disagreements concerning the interpretation of the law and we have received his (Adv Phoofolo's) advice regarding the looming motion of no confidence against the government.
"I had a problem with the manner in which the motion was filed but now that Adv Phoofolo has given his opinion, the owners of the motion can proceed if they so wish. They are within their rights to do so," Mr Motanyane said.
In the opinion prepared for Mr Motanyane this week, Adv Phoofolo said denying any legislator the right to file a motion against the executive was "undemocratic and inimical to the right to participate in the public affairs of the country and the function of parliament to exercise control over the executive".
"I have been requested by the office of the clerk of the national assembly to give an opinion on the tabling of a no confidence motion in the government by the member of parliament for Koro-koro constituency (Mr Koma) and the speaker (Mr Motanyane)'s reaction to that motion.
"The two questions I have been asked to answer are whether a member (of parliament) who is not in opposition can put forward a motion of no confidence in the government and whether a person who is not a leader of a political party can be appointed as prime minister on a motion of no confidence in the government.
"It is my considered view that both questions should be answered in the affirmative. A member of parliament who is not in opposition can put forward a motion of no confidence in the government.
"To contend otherwise is inconsistent with the idea that a member of parliament should always be guided by his conscience and the best interests of his constituents. It is undemocratic and inimical to the right to participate in the public affairs of the country as enshrined in Section 20 of the constitution and the function of parliament to exercise control over the executive," Adv Phoofolo states in the opinion dated 6 August 2019.
He said Mr Motanyane's rejection of Mr Koma's motion stemmed from a literal interpretation of Section 87 (2) of the national constitution which states that "the King shall appoint as prime minister, the member of the national assembly who appears to the Council of State to be the leader of the political party or coalition of political parties that will command the support of a majority of the members of the national assembly".
Adv Phoofolo said a literal interpretation of the constitution was wrong as it ignored the textual and historical context of the phrase "a leader of a political party or coalition of political parties". He said the adherence to a literal interpretation "can give rise to the absurdity that a sitting prime minister may be immune from removal from office if none of the other members of parliament is a leader of a political party".
Adv Phoofolo also said parliament was empowered by the constitution to establish and remove governments. In line with that, anyone who was appointed prime minister may be removed from office if a no confidence motion against his or her government is moved in the National Assembly.
He said although Section 87(4) provided for the removal of a prime minister, it did not however say who should propose a motion of no confidence.
"Section 87(4) provides for the removal of the Prime Minister if he or she fails to resign from office or advise a dissolution of parliament within three days of the passing of a resolution of no confidence in government. Section 87(8) of the Constitution, 1993, requires a motion of no confidence to be accompanied by the name of a member of the National Assembly who is proposed for appointment in the place of the Prime Minister in office, otherwise, the motion becomes defective.
"Both sections 87(4) and 87(8) clearly envisage the passing of a motion of no confidence in the government but the precise manner of doing so are not provided for and it is to the Standing Orders of the National Assembly that we have to look for an answer as to who may propose a motion of no confidence. Standing Order 111 provides that 'a member may move a motion... that this house has no confidence in the government of Lesotho'.
"If the motion of no confidence was intended to be proposed only by members of the opposition in the national assembly, it would have been easy to make a provision to that effect either in the constitution itself or in the parliamentary standing orders and there is nothing in Standing Order 111 to suggest that...
"In my opinion, a member of the government back benches may propose a motion of no confidence in the government and any member of the national assembly may be proposed to assume the office of prime minster even if he or she does not hold a position of leadership of a political party. Honourable Koma's motion of no confidence is therefore constitutionally valid in all respects," Adv Phoofolo states.
Adv Phoofolo's opinion clears the way for the motion to be tabled and subsequently voted upon when parliament re-opens on Friday. Although the primary reason for re-opening parliament is to enable the tabling of the National Reforms Authority Bill to establish an independent body to oversee the implementation of the multi-sector reforms, the pro-Mahao ABC faction and opposition leaders had vowed to ensure the no confidence motion is tabled and brought to vote.
ABC spokesperson 'Montoeli Masoetsa said the ABC legislators would meet today to map the way forward.
"The ABC MPs will meet tomorrow (today) and decide whether or not to continue with the motion of no confidence," Mr Masoetsa said, adding the ideal scenario would have been one where they were able to find an amicable solution with Dr Thabane.
However, such a solution has remained elusive as meetings between the two factions have not bore any fruit. At one of his rallies, Prof Mahao had hinted that if there was no progress in talks to break the impasse between the two factions then his faction would "collapse this thing (the coalition government)".
If the no confidence vote is tabled, it will essentially become a numbers game.
About 20 ABC MPs are backing Prof Mahao though two - Messrs Sello Mooki and Khoboelo Mokoma, this week said they are not in support of ousting Dr Thabane. However if the remaining 18 and the rest of the opposition vote in favour of the no confidence motion, then it will succeed with 68 votes in the 120 member parliament.
Mr Rapapa, the new NEC chairman, recently accused Dr Thabane of resorting to divide and rule tactics by allegedly offering inducements to get those MPs backing Prof Mahao to dump him and get back into Dr Thabane's own fold.
Dr Thabane said at the weekend some MPs backing Pro Mahao had reconsidered their stance and told him they would not oust him. The premier said the MPs had heeded his call for reconciliation, implying that they had not been bribed to change positions.