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.
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!!!
April 7, 2017 at 9:42 am
It is still a wonder how five judges could arrive at such consistently strange decisions. in one fell swoop, they have dislocated Lesotho away from constitutionalism. Those who make poor decisions today are wont to be on the receiving end of those same decisions. Time will tell indeed. I agree, God save Lesotho.