The courts do not have the powers to order the removal of a prime minister as the latter is appointed by His Majesty the King and not the judiciary, Constitutional Court Judge Sakoane Sakoane has said.
He said this on Tuesday while hearing arguments in a case filed by Dr Thabane's own All Basotho Convention (ABC), fellow coalition partner the Basotho National Party (BNP) and the opposition Democratic Congress (DC) seeking the ouster of the premier for proroguing parliament without consulting them and obtaining permission from King Letsie III.
They also want Dr Thabane's decision to prorogue parliament from 20 March to 19 June 2020 nullified on the grounds that it was done without the approval of the king and without notifying parliament. (See story below).
On Tuesday, a three-member Constitutional Court bench comprising of Justices Sakoane (presiding), Moroke Mokhesi and Polo Banyane reserved judgement to 17 April 2020 after hearing arguments from both the applicants and defendants' lawyers.
It now appears certain that particular relief sought by the applicants for Dr Thabane's ouster will now be thrown out by the Constitutional Court after Justice Sakoane's orbiter remarks. The judge made it categorically clear that the courts did not have the power to order the King to fire a prime minister. There was no viable argument from the applicants' lawyers to counter that remark.
The ABC's lawyer, Attorney Kuili Ndebele, had argued that King Letsie III has the power to dismiss the prime minister and appoint a new one.
"Section 87(5) allows the King to remove the prime minister in accordance with the advice of the Council of State, therefore His Majesty has powers to dismiss the prime minister," Attorney Ndebele submitted.
But Justice Sakoane replied by saying that the courts did not appoint prime ministers and therefore did not have any power to order their removal.
"The court does not appoint the prime minister and therefore cannot fire him. If this court orders the removal of the prime minister and the King does not obey, can this court send him to jail for contempt of court," asked Justice Sakoane.
Attorney Ndebele did not respond to the judge's question.
Before Justice Sakoane's response, Attorney Ndebele had quoted Section 87(5) of the constitution which states that:
"the King may, acting in accordance with the advice of the Council of State remove the prime minister from office; if a resolution of no confidence in the government is passed by the National Assembly and the prime minister does not within three days thereafter, either resign from office or advise a dissolution of parliament; or if at any time between the holding of a general election ... the King considers that ... the prime minister will no longer be the leader of a political party or coalition of political parties that will command the support of a majority of the members of the National Assembly... ... ... ."
This clearly means that a prime minister can only be removed by the King in accordance with the advice of the Council of State provided the premier loses a no confidence vote in parliament or if he ceases to be a member of the national assembly.
Justice Sakoane's Tuesday declaration suggests that the parties' bid to oust Dr Thabane through their application will be thrown out. They could however, still remove him from office if they win their bid to nullify the prorogation of parliament and thereafter, the senate approves a constitutional amendment bill which seeks to clip his powers to advise the King to dissolve parliament whenever he loses a no confidence vote. If that happens, they could proceed to pass a no confidence vote against him in parliament and recommend the appointment of Finance Minister Moeketsi Majoro in his place. The ABC has inked a deal with the DC to form a new coalition whenever parliament re-opens. Dr Majoro will be deputised by DC leader Mathibeli Mokhothu in that proposed new coalition which will replace the current four party government comprising of the ABC, Deputy Prime Minister Monyane Moleleki's Alliance of Democrats (AD), Communications, Science and Technology Minister Thesele Maseribane's Basotho National Party (BNP) and Labour and Employment Minister Keketso Rantšo's Reformed Congress of Lesotho (RCL).
It is understood at least 35 members of parliament (MPs) from the ABC's total tally of 52 have already signed a pledge supporting the new proposed coalition. The 35 together with the 26 from the DC guarantee the 61-majority required to form government. It is likely other ABC MPs will come on board, giving the proposed coalition an unassailable advantage. The BNP, the Popular Front for Democracy (PFD) and other smaller parties have also been earmarked in to stabilise the proposed coalition.