Democratic Congress (DC) leader, Mathibeli Mokhothu, has threatened to sue Speaker of Parliament, Sephiri Motanyane, if he does not reverse his decision to throw out the no confidence motion against Prime Minister Thomas Thabane.
Addressing scores of DC supporters in Qacha's Nek this week Mr Mokhothu said his party would first exhaust all available internal parliamentary remedies before approaching the courts.
Mr Motanyane last week threw out a no confidence motion against Dr Thabane saying it had no basis in law and parliamentary practice.
Although Speaker Motinyane's ruling is an obvious blow, at least for now, to the opposition and the Nqosa Mahao-led faction of the All Basotho Convention (ABC), who have united in seeking the premier's ouster, they nevertheless see it as a minor and temporary setback. Their immediate concern is to first push through an amendment to the constitution barring the prime minister from dissolving parliament if he loses a no confidence motion. Once that is done, they then plan to focus on the no confidence motion itself, knowing that if it succeeds, the prime minister would have no powers to scuttle it by dissolving parliament.
Mr Motanyane threw out the motion last week on the grounds that it did not have "any basis in both the constitution and in the practice of parliament". This despite a legal opinion from Attorney General Haae Phoofolo's advising the Speaker that the no confidence motion had essentially been properly filed. The Mahao faction had been within their rights to file the motion as any MP was entitled to file any motion of their choice without any let or hindrance. That was in fact the very essence of democracy, Advocate Phoofolo had advised.
The no confidence motion was originally filed in June 2019 by Motebang Koma, the ABC's Koro-Koro constituency legislator and it was seconded by opposition Democratic Congress (DC) deputy leader, Motlalentoa Letsosa.
Mr Koma proposed that the ABC's Mosalemane constituency legislator, Samuel Rapapa, takes over as caretaker prime minister and effectively warm the seat for Prof Mahao. 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 had then been indefinitely adjourned since June, without a vote on the motion. This after Mr 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 Mr Rapapa as the caretaker prime minister instead of an opposition leader.
In the legal opinion that he prepared for Mr Motanyane in August, 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".
Shortly after receiving Adv Phoofolo's opinion, Mr Motanyane said Mr Koma was free to proceed with his motion if he so wished.
But in a new turn of events last week, Mr Motanyane threw out the motion, citing his original arguments that Mr Koma's motion could not be tabled and debated in parliament because it had not been filed by a member of the opposition as per parliamentary conventions.
He said although he had sought and obtained Adv Phoofolo's opinion on the issue, the opinion was not binding and he was free to rule as he saw fit on the admissibility of the motion.
"This is the decision of the chair," he said, adding, "my considered ruling is that it (no confidence motion) is not admissible".
"I repeat, my ruling is that this motion, as it is, is inadmissible... This motion is not acceptable because it does not have a basis both in the constitution and in the practice of parliament," Mr Motanyane said.
He also said his decision was based on the writings of a 19th century British parliamentary affairs expert, Erskine May, who said that no confidence motions were filed by the opposition "expressing lack of confidence in the government or criticising its general conduct".
And addressing his supporters this week, Mr Mokhothu said they would exhaust all internal avenues before seeking the intervention of the courts to get Mr Motanyane to pass the motion.
"We are determined to fight Ntate Motanyane with the parliament standing orders. We have already advised him that his decision can be challenged with standing order 49. They tried to convince my deputy Ntate Motlalentoa Letsosa that the speaker's decision was final and could not be challenged. That is not true. Not in Lesotho. The speaker's decision can be challenged by legislators with a motion and we have already done that. We will surely get to vote on it.
"He is pushing us to seek the intervention of the courts which they have polarised and destroyed... Nevertheless, we will still seek their intervention to cancel his decision because we have a strong feeling that it is baseless. If the courts rule for us, we will carry on with the motion and we will definitely win.
"But we would have first exhausted all the possible internal remedies as provided by the parliament standing orders and the constitution."
Mr Mokhothu said Mr Motanyane's argument that only opposition MPs, particularly him (Mr Mokhothu) as the opposition leader, were eligible for filing a no confidence motion against the prime minister was illogical.
"They are just trying to drive a wedge between us (opposition) and the Professor Mahao faction. The motion is eligible according to the Attorney General's legal opinion," he said.
He said the government was nearing its death and Mr Motanyane was merely flexing his muscles to save it.
"The Speaker of Parliament sat on the motion of no confidence for about eight months. Such has never been heard of in the world. It is a bad stain in a democratic dispensation. Parliament gives birth to the government and on the same stride, the same parliament has the right to eliminate the government.
"In 2017, when they filed a motion of no confident against us, we did not resist. The then speaker of parliament Ntlhoi Motsamai was not hesitant to pass their no confidence motion. They would not even give us the chance to pass the budget speech, we attended to their motion... Now they are holding the Speaker of Parliament hostage barring him from addressing the motion of no confidence," Mr Mokhothu said.
Mr Mokhothu said the government had lost numbers and some of its members had already acknowledged that. The Thabane coalition was barely clinging on to dear life.
"The government cannot stand without the DC. This is why they stole some of our MPs. And unfortunately, our MPs bought into the lure and took the offer. But I bet they miss us. They took four of our MPS to make 70 sits. But we knew then that they would not last," Mr Mokhothu said referring to the defection of legislators Pontso Sekatle and Semano Sekatle to ABC and Tlohelang Aumane and Mothepu Mahapa to Monyane Moleleki's Alliance of Democrats (AD) all from DC.