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April 2017

Mosisili’s final weeks: can his successors untangle the web he’s woven?

 

Overview

 

Two and half years out of office as Prime Minister for Mosisili were an unbelievable nightmare. Almost two years since he regained office, though not power, Mosisili’s time has been an unimaginable nightmare for Lesotho and the Southern African region. But the election period which was the result of Mosisili’s defeat in Parliament and the subsequent dissolution of Parliament, have witnessed a sprint to fill the gaps in capturing key state institutions so that he could rule from the grave. This will prove to be the most pivotal period in Mosisili’s attempts to fully capture the state so that his successors will have virtually no influence in the future of the country for at least twelve months if they are innovative. Without adequate plans, this would be the end of their political dominance even if they win the elections.

 

Mosisili’s second coming as Prime Minister was dramatic and tragic at the same time. The seven-party coalition which Mosisili cobbled was too narrow to effectively govern, particularly in a divided country. But more importantly when one considers that three of those political parties did not strictly speaking qualify to even have one seat in parliament that makes the situation worse. In the 2015 elections, political parties were awarded a proportional seat if they had amassed 4,600 votes throughout the country. The table below shows the number of votes three of those parties Mosisili struck a coalition with had in the 2015 elections. 

 

Political Party

Total number votes

Number of seats per quota

Number of compensated seats

Marematlou Freedom Party

3.413

0

1

Basutuland Congress Party

2,721

0

1

Lesotho People’s Congress

1,951

0

1

 

 

 

As will be clear, all above were compensated with one seat per political party because those were left over when seats were allocated. Since we do not have an overhang system as in Germany where this Mixed Member Proportional model comes from (MMP), the seats were given to the next deserving in numbers. Incidentally each of the leaders of the above political parties became a Minister even though they did not qualify to have a seat but were rewarded for failure so to say.

 

The period was also tragic since the narrow coalition forced Mosisili to either work civilly with the opposition or resort to the use of force. He was not able to resort to the former since some of his coalition partners and the unreformed military wanted vengeance against those in the opposition who attempted to remove the then Commander of the Lesotho Defence Force, Kamoli. In the end people were killed, tortured and exiled. This led to the establishment of the Phumaphi Commission of Inquiry and subsequent decisions by SADC.

 

At the executive level, Mosisili cleared the decks by removing the Government Secretary, who heads the public service; and not less than fifteen Principal Secretaries; removed the Commander of the army; removed the Commissioner of Police; removed the President of the Court of Appeal; and unsuccessfully attempted to remove most Ambassadors from their postings. The replacements of those were revealing in that all the new appointments were made up of card carrying members of the seven party coalition. But more significantly, the re-appointment of Kamoli as a Commander of the Lesotho Defence Force consolidated Mosisili’s control over the armed formations. Working with the other lawless elements in the force, who had refused to submit to civilian control in 2014-2015, the transformation of the forces to a militia was completed.

 

The processes to ensnare all critical structures of the state into a situation where they have become Mosisili’s echoes have continued up to four weeks before the snap elections expected 03/06/2017. They are unlikely to stop even up to the last day. Since the dissolution of Parliament, Mosisili has accelerated the process of appointments with a clear view to ensure that his influence will be felt long after he has disappeared from the political scene. As will be argued below this is not only unethical but goes against the conventions in a Westminster system of governance. What is key here is to clarify the cardinal principles underlying the caretaker government in the Westminster system of governance and how Mosilili has fared. The question then is whether Mosisili’s successors will be able to unravel the system which was meant to prevent them from implementing their policies after the elections.

 

 My well informed assumption is that Mosisili will lose the elections in spite of intimidation and fraud that is expected. But, more importantly, Mosisili is likely to use the militia he has created to retain office and not power, after losing the elections. The real power will always be with his militia rather than him and his allies. But the militia he has created and several other civilians are fearful of the possible loss of elections by their patron since they are listed in the Phumaphi Commission Report to have committed several capital crimes. They are therefore in a panic and would be ready for anything to prevent the transition

 

Flouting the conventions of a caretaker government

 

It is important to note that our constitution is based on the Westminster system of government. Not everything that sustains that system is therefore written in the constitution. This is so in the United Kingdom, Canada, Australia, India and others.

 

I am therefore not going to refer to anything which is written in our constitution but only to certain unwritten customs and conventions which we have observed over the years and which come to us as a consequence of having inherited a parliamentary system of government from the United Kingdom. This is important since much of what is fundamentally significant to the successful operation of a parliamentary system of government is based on custom and convention. The constitution does not and could not attempt to cover every conceivable eventuality.  Jurisprudence on this issue is rich and has generally been the foundation of interpretation of what is the norm in a parliamentary system of government.

 

Briefly, the caretaker period begins at the time Parliament is dissolved and continues until the election result is clear or, if there is a change of government, until the new government is appointed. 

 

 During the caretaker period, the business of government continues and ordinary matters of administration still need to be addressed.  However, government work is restricted in at least three ways:

 

a)      important decisions which are likely to commit an incoming government are not made by Ministers who cannot be held accountable once the Parliament  has been dissolved;

 

b)      making significant appointments is not done;

 

c)      entering into major contracts or undertakings is also not done.

 

Major reasons behind these conventions are clear. It is to protect the interests of the state against misuse by politicians who could be tempted to electioneer or to hamstring their competitors after the elections. But more importantly is the fact that after the dissolution of Parliament, there are no oversight mechanisms for actions of Ministers. Again in our system of government after the dissolution of Parliament, Ministers are technically ordinary members of the public. Ministers can only be appointed from Parliament hence they no longer have the political authority once dissolution has been effected.  

 

How then do these fit with Mosisili’s recent actions after the dissolution of Parliament? At every level one views this, it is clear that Mosisili has not gone into a caretaker mode. For him there is no difference between the post-election period in 2015 when he ascended to office and the present time after the dissolution of Parliament. In an earlier publication in lesothoanalysis I argued that the main reason why Mosisili would not resign and hand over power to anybody designated by Parliament was to extend his rule even if it’s for a few months in order to complete the unfinished business of deploying his relatives and allies to key positions. Some of those appointments like the appointment of his son-in-law as Ambassador, Moshe Kao, to Switzerland were done on the verge of dissolution. This thus was technically before the caretaker role had kicked in. If anything, it can be criticised for reasons like nepotism and also that it did not go through proper channels.

 

In order to show the utter disregard of the caretaker conventions I list hereunder key appointments which Mosisili has been rushing to fill before the elections. Most have already been filled, while those of Ambassadors seem to be stalling because of questions being raised by the Public Service Commission.

 

Post

Location

Name

Status

Chief Delegate

Lesotho Highland Water Commission

Rethabile Mosisili

Appointed (April 2017)

Ambassador

Dublin, Ireland

Dr. M. Ntho

Deferred by Public Service (10/04/2017)

Ambassador

Tokyo, Japan

Mr. T. Green

Deferred by Public Service (10/04/2017)

Ambassador

Berlin, Germany

Mr. A. Rat’sele

Deferred by Public Service (10/04/2017)

Consul General

Durban, South Africa

Mr. R. Nkoka

Deferred by Public Service (10/04/2017)

President 

Court of Appeal

Justice Nugent

Appointed (22/04/2016)

 

By any standards these are key positions which under no circumstances should be made during the caretaker period. Lesotho Highlands Commission is the most important institution on both infrastructural development and also strategic water resources in the country. Mosisili’s son, is not only the least qualified person to represent Lesotho, but represents the type of disruption to the work of the Commission that it could not be sustained by any successor government. At the critical stage when work has to begin, Mosisili brings his son whose only qualification is that he is his son. This is part of the web that Mosisili is weaving. At the personal level, he probably hopes that his son would get a hefty compensation when a new government takes over. That his son will be removed he must know.

 

The same goes to the key ambassadorial positions in key countries. At the very least, during a period like this, governments can appoint people in acting positions not long term ones which will affect the ability of the new government to implement its policies. It is wrong and hopefully the countries those designated ambassadors are supposed to go to will see through this mirage Mosisili is weaving and wait for the new government to confirm their appointment.

 

The final stroke by Mosisili has been the appointment of Justice Nugent to head the Court of Appeal. The question is not about his competence or allegiance to the Mosisili regime. It is about the period and the significance of the appointment. Being appointed during this period to a senior position is like that is like waving a red flag. Senior judicial appointments are particularly sensitive in a period leading to the holding of elections. This week the Lesotho media has been reporting the concern of the Independent Electoral Commission about the mood in the country. The Commission suspects that the post-election period could be troublesome. It is these challenges which will place the judiciary at the centre of the electoral process if there are election petitions. Will Mosisili’s competitors be comfortable with a judge who has been appointed and spirited to Lesotho four weeks before elections? It’s a question of controversy and perception that appointing bodies and appointees should be wary of.

 

Indeed in Australia there is unanimous view that the ‘significance’ of an appointment can be assessed through two considerations – the importance of the position and the likelihood that the appointment would be controversial. Controversy is the last thing a judicial appointment needs.

 

The question therefore is how can Mosisili be stopped? Also how and who can ensure that this web which Mosisili has woven including use of the militia, key public sector appointments and also key judicial appointments during the caretaker stage don’t affect the electoral process? But more importantly, are there ways of unravelling this web shortly after the elections?

 

 Mosisili’s last stand

 

Mosisili knows that in any credible elections he will lose. The only question would be the margin of his loss. This is why he has now firmly nails his colours to the mast to defiance and obstinacy. His last chance is to refuse to be placed in a situation where there are internal and external arbiters on what he does. This is why he has emphatically rejected SADC’s decision that there must be a pre-election Stakeholder Forum arranged by the Facilitator and the Oversight Committee.

 

Writing to the King of Swaziland as Chairman of SADC, in typical Mosisili style, he scolds SADC for interfering in Lesotho’s internal affairs by suggesting in the Communiqué of the Extra Ordinary Summit of SADC Heads of State and Government, in March 18th 2017 that the Facilitator and the Oversight Committee be charged with the responsibility to “monitor the political and security situation in the Kingdom of Lesotho, during the election period.” He views this as an attempt to erode Lesotho’s sovereignty. But more importantly Mosisili insultingly labels the multi-stakeholder forum spurious.

 

At para 12, the Facilitator and the Oversight Committee are charged with yet another spurious responsibility “to conduct a multi-stakeholder national dialogue before the Elections set for 3rd June, 2017”. With respect, we find this most unrealistic and absurd. How and where on earth, would anyone have time for this multi-stakeholder dialogue during the campaign period for elections?

 

Thus Mosisili flatly rejects the decision to have a multi-stakeholder forum. This is ostensibly because of electioneering processes and also for purposes of defending Lesotho’s sovereignty. The real reason however is that Mosisili wants to have a free reign to intimidate and misuse state resources as he goes towards elections. More importantly, he knows that all the opposition political parties would like to use the forum to commit to a peaceful election and to bring about the necessary monitoring and guarantees of the same by SADC. Indeed in a joint statement, the four opposition political parties which were represented in the dissolved Parliament have reiterated the need for a pre-election multi-stakeholder national dialogue in order to reign in Mosisili and his cohorts in order to ensure peaceful elections. Nobody is now talking about free or fair elections because that is an unattainable thing. But people are demanding peaceful elections.

 

Mosisil goes on laments that “para 13” of the Communiqué brings about the endorsement of convening a Forum immediately after elections to engage the government on implementation of the decisions and recommendations of the SADC Commission of Inquiry. He expresses shock at the veiled threat of the “consequences” for failure to observe timelines imposed on us. This he argues is a complete departure from established procedure for managing inter-state affairs.

 

But what seems to irk Mosisili most is that “…the Head of the Lesotho delegation, Honourable Deputy Prime Minister Mothetjoa Metsing, MP, we were NOT accorded the opportunity to be heard.”  Indeed Mosisili makes his own veiled threat to withdraw Lesotho from SADC. He argues “It would be a sad day if indeed we were to allow SADC to degenerate into a body where might reigns supreme…This is NOT the SADC we would be proud to be a part of.”  

 

This essentially means that Mosisili has drawn a line on the sand that he does not want to have anybody to tamper with his project to live beyond his mandate after the elections. It means that all national and international restrains which could ensure peaceful elections are thrown overboard. Indeed the type of elections which took place in Zimbabwe in 2008 is the only likely end if Mosisili has his way. What are the scenarios for Lesotho?

 

Conclusion and scenarios

 

What we have tried to show here are essentially three things. First is the fact that Mosisili has woven a web at all levels of the state in order to secure his future after his prospective loss in the coming elections. He has done so by embedding his relatives and surrogates in all structures, domestic and foreign in order to rule from the grave. But more importantly, in a few years he has succeeded in turning all the armed formations in the country into his militia which will do anything but accept his replacement. This is made more important as a result of the findings of the Phumaphi Commission that the leaders of that militia which are now elevated to be part of the Command, face criminal investigations for High Treason, murder and other serious crimes. The militia is unlikely to want to end their lives in prison.

 

Second, I have shown that the caretaker conventions place restrictions on the caretaker government. Mosisili has all but ignored those and is speedily trying to fill all significant posts in both the public service and the parastatal sector.  This is also part of the web he wants to weave for his successors.

 

Thirdly, Mosisili dismisses SADC for trying to slow him down on this path of ignoring every possible restraint as elections approach. What is clear is that he has seen through SADC’s weaknesses of dealing with him with kid gloves. For more than a year after it made decisions based on the Phumaphi Commission, Mosisili has played SADC around at times claiming he has accepted the decisions to undertake constitutional, public sector and security reforms only to do nothing of the sort. It was a game of talking reform not to reform. As a result of this, the situation as elections approach is more perilous than at any time before.

 

Two scenarios are clearly discernable as elections approach. First is the scenario of the Mosisili militia intimidating people before and during the elections. This could lead to a situation where elections are disrupted particularly in rural areas. This is most likely scenarios since losing elections would certainly lead to the prosecution of the militia for the crimes they have committed from 2007. The stakes are very high. Protecting the people against the militia is not possible unless there is massive foreign monitoring which Mosisili does not want. We’ll see whether Mosisili will cooperate with Ramaphosa’s proposed mission to Lesotho on 9th May 2017. So far, Mosisili has not responded to the correspondence from the Facilitator.

 

The second scenario, which can be called the devil’s scenario, is one where the winners of the elections are eliminated. This is more so if whoever wins the elections puts himself into a public ceremony for swearing in without any protection. Just imagine that the criminal gang which forced the former Prime Minister Thabane into exile in 2014 and again forced him and other opposition leaders into exile in 2015 can now be expected to look after the security of any of those. It would at best be reckless and at worst stupid to present a clear opportunity for an assassination to the militia. About the best that can be done is a private swearing in ceremony which would allow the new Prime Minister to arrange an appropriate security detail after before an inauguration. The Gambian situation presents itself as more attractive one for whoever wins elections.

 

It is clear to me that Mosisili will lose the elections and will try all within his means to hang on to office. Even if he wants to leave office, his militia is most unlikely to agree to hand themselves over to account for their crimes.

 

 

 

MMS/30/04/2017

 

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Meaning and implications of judgment by Constitutional court on democratic governance in Lesotho

 

 

 

Overview: contest for power between executive and parliament

 

On Wednesday 29th March 2017, a few days before the issue of the judgement by the Lesotho Constitutional Court on two applications on the dissolution of parliament; the power and role of the Council of State on matters of dissolution of parliament; whether the minister of finance can cause to be accessed funds in the consolidated fund without parliamentary authority; and whether in such access, the minister can use funds which don’t exist in the 2016/17 budget line items; the Venezuelan Supreme Court considered a similar or related issue. It was a question of whether the government could by-pass an opposition controlled parliament to pass the budget. The Supreme Court came to an amazing ruling whereby it abrogated to itself the power of parliament to pass the budget. When the Lesotho judgement came out a few days later, it was remarkably similar. While in Venezuela the court abrogated power to itself on behalf of the executive, in Lesotho the court handed over power to the executive to the exclusion of parliament. It seems we are in good company!

 

Julio Borges, the president of the Venezuelan Assembly correctly pointed out that the “….Supreme Court had stripped power from congress” and that move allows President Maduro to rule by fiat.  Like in Lesotho, where Parliament had refused to allow the tabling of the budget in view of the numerical inferiority of the government numbers in the house, the situation in the Venezuelan situation also revolved around both the budget and the refusal of Congress to “.. authorise a joint venture with private companies by Venezuela’s state-run oil company.” Due to national and international pressure, the Supreme Court eventually reversed its decision.

 

As can be seem above, there have been remarkable similarities between the contestations in both Lesotho and Venezuela with varying outcomes. The key however is that in both cases, the three legs of the state have been mixed up and in contestation about power. In both cases, the courts have largely undermined the role of parliament as both a legislative body and also as an oversight body. The meaning and implications of the latest constitutional court case in Lesotho are more significant and perhaps the most damaging one for the sustainability of democracy since independence. Even before the coming of the 1992 constitution, the Lesotho courts had a tradition of independence and protectors of the rights of citizens. The judgments of both Mapetla C.J. and Mofokeng J. are part of that proud tradition. That tradition has however been challenged by judgments like that given by the constitutional Court on Monday 03/04/2017, which subordinated all the key governance institutions to the executive. 

 

Vote of no confidence and dissolution of parliament

 

For the first time in Lesotho political history, Parliament on 1st March 2017 overwhelmingly passed a vote of no confidence on the government. That was a historic day which unfortunately also brought into the picture the fragility of the country’s governance institutions as a whole. The Prime Minister, who was tossed out of power, rather than submit to the wishes of Parliament advised the King to dissolve parliament. A brief revisit of the applicable sections of the constitution is necessary in order to have a common understanding of the issues under contestation. Detailed discussions on the constitution have been dealt with in an earlier post and will consequently not be the subject of discussion here. Rather the focus will be on the judgment and its implications for democratic rule in Lesotho.

 

Prorogation and Dissolution of Parliament are dealt with in Part 3, of the constitution. According to Section 83 of the constitution, dissolution of parliament may be done by the King on the advice of the Prime Minister. However, paragraph (a) spells out clearly that with the advice of the Council of State, the King may “refuse to dissolve Parliament” (My emphasis) if he considers that the Government of Lesotho can be carried out without dissolution and it is not in the interests of Lesotho. The Lesotho system of governance does not accord the King with executive power, hence the provision that this can be done with the advice of the Council of State. It means that it is not up to the King sitting with the Prime Minister, who is the subject of the discussion, as Mosisili argues, but with a body established for that purpose. In one hand, this Section provides the safeguards against a monarchical dictatorship while on the other hand; it provides a cover for the King against criticism for His decisions. The question is whether that cover remains after the judgement of the Constitutional Court?

 

Giving judgement, Justice Moiloa ruled that the King acted constitutionally and lawfully in terms of the Lesotho constitution. The court added the section in question did not prescribe that the King ought to act with the advice of the Council of State in circumstances where the prime minister acted within three days to tender advice for dissolution of parliament. “On the contrary it is clear that if the king receives advice from the prime minister within three days after losing a vote of no confidence, he can act according to the advice of the premier alone.” This view of the constitution is not only wrong but embarrassing as I will demonstrate later. The constitution is body of law with coherence and one section must necessarily be read with the others. What would be the point of having the Council of State if it can be by-passed by a wounded Prime Minister? Again what would be the point in having a vote of no confidence framed in the way it is in Section 83(5) if that would have no consequences. The Subsection spells out that a motion of no confidence “shall not be effective ….unless it proposes the name of the member of the National Assembly for the King to appoint in the place of the Prime Minister.”

 

What this judgment does is to sweep away the concept of a constitutional monarch and replace it with an executive one where the King makes decisions without any structure rather than acting in Council as envisaged by the constitution. It also introduces a potentially damaging contestation for power between the King, who now has discretion on his own as opposed to deciding in council with the Council of State. If the all powerful Prime Minister and the King who now will not be strictly speaking be constitutional monarchs disagree, what will be the consequences?

 

Parliament versus Minister of Finance

 

Another issue of contestation in the Constitutional Court was whether the Minister of Finance can cause to be accessed funds in the Consolidated Fund where the budget was neither been laid nor passed by Parliament in terms of Section 113 of the Constitution. Also important was whether an advance against the budget from the Consolidated Fund can be made if there was no budget line item in the preceding budget. Concretely there was no budget line item for General Elections in the 2016/2017 budget. This therefore meant that the Minister of Finance could not create a new budget line item called General Elections in any advance from the Consolidated Fund.

 

For ease of reading, Section 113 of the Constitution dealing with authorisation of expenditure in advance of appropriation spells out that Parliament may make provision for advance withdrawal from the Consolidated Funds if it appears to the Minister of Finance that the Appropriation Act will not come into operation by the beginning of the financial year. Two important provisos are however laid out on the modalities of the advance withdrawal. First Section 113 (a) provides that advance withdrawals “..shall not exceed in total one-third of the sums included in the estimates of the expenditure for the proceeding financial year that have been laid before the Assembly; (My emphasis). Section 113 (b) further amplifies the position by emphasising that the advance from the funds of proceeding year can only mirror the budget line items of the preceding financial year. “….no sums shall be so authorised to be withdrawn to meet expenditure on any head of expenditure in that financial year if so sums had been voted to meet expenditure on that head of expenditure in respect of the preceding financial year….” (My emphasis).

 

The judgment of the Constitutional Court on the budgetary issues has two elements. First is the question of the respective roles of both Parliament and the Minister of Finance. In argument, the focus was on whether the budget was laid before Parliament in terms of both the Constitution and the Stating Orders. Whether the budget was laid has consequences since it can trigger the advance withdrawal from the Consolidated Funds before the budget was approved. The Court surprisingly conceded that the budget was not laid because Parliament “frustrated” that process but then went on to decide that the Minister can cause access to the Consolidated Funds.

 

The matter revolved around understanding of the meaning of both “preceding year” and “proceeding year.” The court read “proceeding year” as 2016/2017 financial year which ended in March 2017. This is was a serious misdirection and gigantic embarrassment. Accounting 101 and English 101 would have provided sufficient clarification of what those terms mean in accounting terms and ordinary English. Proceeding year can only be the budget of the following year. But in this case that budget does not exist for two reasons. The budget was not laid in Parliament, but more importantly even if it had been laid, when Parliament was dissolved, it would have disappeared in terms of the law. Laying the budget in simple everyday language means that it was not presented to Parliament. If it wasn’t laid it does not exist. Ideas in someone’s head about what the budget would look like may exist, but for all intents and purposes it does not exist.

 

Having misread proceeding for preceding, the court decided that the Minister can cause access to the Consolidated Funds without a budget. The question is whose budget is the Minister accessing? Who approved it? Who will oversee it since nobody except the Minister and probably his cabinet colleagues know about such a budget?

 

Embarrassingly the court in its haste to be on the side of the executive, failed to make a ruling on whether in a case such as the 2016/2017 budget where there was no budget line item for general elections, whether the Minister can now manufacture such a budget line item retrospectively in order to make an advance from the past. I emphasise that no ruling was made on this matter despite the fact that it was one of the prayers by the applicants.

 

Understanding the decision and its implications for democratic governance

 

The oxygen of democratic governance is its Parliament, which not only makes laws but also oversees expenditure and governance in any country. Where parliament is weak, the executive does as it pleases. This is why the judgment like this which sidelines Parliament is regrettable and has serious implications for the future, unless it is overturned. In a similar manner, ignoring the Council of State on questions of dissolution of Parliament raises the spectre of a one man rule. It raises the Prime Minister above all institutions i.e. Parliament and the Council of State.

 

Perhaps more revealing on why decisions like these have to be viewed as arising from a perspective that the executive is right and all other checks on the executive are wrong can be found in both the judgment of the Constitutional Court here and also the decisions of the Venezuelan Supreme Court. Philosophically the Constitutional Court points out that “…..“in interpreting provisions of the constitution… we adopt a remedial approach in order to give the constitution purpose and meaning that avoids calamitous results that could cause collapse of the state and paralysis of its functions”. The issue therefore, as I see it, was how to rescue the calamitous decisions of the executive to refuse to hand over power after defeat in Parliament. It was not about the proper interpretation of the Constitution.

 

In a similar philosophical mode, the Venezuelan Supreme Court’s justification for a dash for power was motivated by an attempt to protect the executive against Parliament where the opposition is dominant. Justification was that “…the court’s ruling was not seeking to supplant congress but rather to guarantee the rule of law so long as congress remains obstructionist by refusing to sign off on a budget and key economic decisions that Maduro says are needed to overcome widespread shortages and triple-digit inflation.” It is important to point out that this view of the world is the antithesis of the separation of powers in a constitutional democracy. Courts adjudicate. They don’t rule. They also don’t amend the constitution as this judgment of the Constitutional Court has effectively done. It read that proceeding year means the preceding year.

 

The overall impact of this judgment will be felt for many years unless it is appealed and repealed or an amendment of the Constitution is effected. Four critical implications of this court judgment are listed below. They are not listed in any order of priority.

 

a)      Sections of the Constitution referring to the vote of no confidence can effectively be ignored. They would serve no purpose since the Prime Minister can effectively nullify the decision of Parliament by single handedly advising the King to dissolve Parliament. In a similar manner the King need not consult anybody but can dissolve Parliament. The King all at once now has discretionary powers without limit as was envisaged by the drafters of the Constitution that Lesotho has a Constitutional Monarch;

 

 b)      The sections of the Constitution which refer to the role of the Council of State are ineffective. Section 95 (8) which authorises “…any member of the Council, supported by not less than seven members, may call a meeting of the Council of State” is also by decision of the Constitutional Court redundant since the Council can be ignored. It is common cause that eight members of the Council of State sought a meeting and such a meeting was denied in spite of the stipulations of Section 95;

 

 c)       The role of Parliament as provided for in the Constitution has been clipped. The Minister of Finance can effectively by-pass Parliament in the budgeting process by causing access to funds which have neither been laid nor approved by Parliament. In fact the Minister of Finance is free and able not to table the budget for four months of the financial year without bothering about Parliament. There is no obligation on the Minister of Finance to table a budget before the end of March as per Section 112. The court has effectively given the Minister authority to table the budget as and when he pleases. Nothing would stop the Minister to table the budget in July of the given year. He could however go on a spending spree using funds budgeted in the previous year as opposed to the proceeding year as was in the Constitution until it was struck off a few days ago;

 

 d)      The oversight role of Parliament is dead and buried. Parliament can only oversee administration and budget which it has provided. Without a transparent budgeting process, there is no way in which Parliament can oversee a non-existent budget. Mismanagement of public funds has now been given a legal cover. Auditing is based on approved budgets and accompanying plans. When the Minister of Finance is given carte blanche on public funds we can only imagine what will happen from now on. Our parliamentarians from now on will only operate within the confines provided by the executive.

 

Conclusion

 

We live in dangerous times. Without Parliamentary oversight, Lesotho has now been plunged from a political crisis into an anarchic public management system. The low hanging fruits principle posits that even those who did not plan to steal will as long as there are no safeguards and also no restraints on those in office.

 

This disastrous judgment has now brought about the country at crossroads. If it is not successfully appealed, there will no longer be any accountability in Lesotho. It will only be word according to the executive, which has not been shown to be self-restraining when it comes to public funds and other areas. It will be the survival of the fittest and nothing else. Once this government is out out of office, there will be no alternative but to amend or write a Constitution, since the Constitutional Court has permanently destroyed the existing one.

 

God save Lesotho!!!

 

 

 

MMS/05/04/2017

 

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