The Prime Minister, the Right Honourable Mr Thomas Motsoahae Thabane announced his intentions to resign as Prime Minister on Monday the 20th day of January 2020. On Thursday the 19th day of February 2020, the Right Honourable Prime Minister announced on Lesotho Television that he is due to vacate office by the end of July 2020 or earlier if the requisite processes are completed in time. The Prime Minister also indicated that he had an audience with the crown and SADC Facilitator, His Excellency Cyril Ramaphosa to inform them of his intentions to vacate office.
The announcements came amid mounting calls from All Basotho Convention Executive Committee, the opposition and general indignation of the populace for him to step down from the Prime Ministerial position. The outrage was inter alia a result of his alleged involvement with his current wife in the death of his second wife. It is apt to point out at the inception that this essay is about neither prosecution of Thabane and his wife nor is it concerned with whether the Prime Minister and his crew choose to call his resignation retirement.
What is certain is that The Right Honourable Prime Minister will occupy the Prime Ministerial position until a successor is identified, nominated and ready to be inaugurated which is traditional in Westminster government systems. This event is unprecedented in Lesotho and raises interesting political and constitutional issues. The political aspect concerns the processes of consultation, as there is no obvious successor in place to be summoned to the Palace to take the keys to the State House. The constitutional aspect, which is more germane, deals with constitutional procedures based on precedent involved in the appointment of the successor.
The paramount issue revolves around whether there are constitutional procedures to assist in dealing with the contingency when the Prime Minister resigns. The unprecedented nature of this contingency in our jurisdiction requires consideration of the British conventions and constitutional practices from whence Lesotho’s constitution draws inspiration.
This essay attempts a conventional framework based on British conventions and practices provided that the astute Professor Hoolo Nyane has extensively dealt with Lesotho’s constitutional provisions on formation of government in his publication entitled “Formation of a Government in Lesotho in the Case of a Hung Parliament”. In a Facebook threat published on the 21st of January 2020, Professor Nyane highlighted that he made a bold statement in the media that “in terms of the Constitution of Lesotho, the prime minister is not directly elected; either by the electorate or parliament.”
This essay adds to the literature already provided by the learned Professor by adopting and considering British practices based on the same conventions Lesotho adopted at independence from the British in 1966. In this essay’s considered view, these precedents provide constitutional conventions that serve as valuable guidelines on how the contingency of a resigning first minister of His Majesty and his successor has to be handled.
The British Conventions and Practices: Guidelines to deciphering the procedure
It is public knowledge that through the Independence Order of 1966, Lesotho adopted a Westminster form of governance from Britain. In the Westminster system, which Lesotho and other commonwealth countries subscribe and adhere to, conventions guide governments on how to efficiently meet procedural constitutional principles. Despite the statement’s recurrence in contemporary political and constitutional debates, its relevance since the dawn of coalition politics and possibility of minority governments cannot be downplayed. Indeed, precedents with regard resignation and consequent succession to the prime ministerial post have been set in the Westminster system in the United Kingdom from the succession of Sir Anthony Eden after Sir Winston Leonard Spencer-Churchill’s resignation in 1955 to the recent resignation of Theresa May and Boris Johnson’s succession thereto in 2019.
On April 5, 1955, Sir Winston Leonard Spencer-Churchill, Britain’s Prime Minister who served from 1940 to 1945, when he led Britain in alliance with the United States of America and the Soviet Union that defeated the Axis powers in World War II and again from 1951 to 1955, resigned as prime minister. A day later, on the 6th day of April 1955, Sir Anthony Eden was called to the Buckingham Palace to succeed Winston Churchill. Just like Lesotho’s Prime Minister Thomas Thabane, Churchill was 80 at the time he informed Queen Elizabeth II and her husband, Prince Phillip of his intentions to resign.
Amid the Suez Canal Blockage crisis, Sir Anthony Eden, a successor to Churchill, resigned as Her Majesty’s first minister on the 9th day of January 1957. The crisis placed enormous pressure from all fronts on Sir Anthony Eden’s administration. However, the official reason for his resignation was a medical report in which four doctors held an opinion that “his health will no longer enable him to sustain the heavy burdens inseparable from the office of Prime Minister.” Unfortunately, Eden hastily resigned without any apparent successor to the Prime Ministerial position which caused a delay in the appointment of a successor.
On 16 March 1976, the leader of the Labour Party, Harold Wilson at the age of 60, announced his intentions to resign as the British Prime Minister. In order to ensure an orderly succession, he remained in Office when the Labour Party engaged in the process of electing his successor. James Callaghan was thereafter elected as the Labour Party leader after defeating 5 other candidates. On the 5th day of April 1976 Wilson resigned and James Callaghan succeeded him as the Prime Minister. James Callaghan served as the Prime Minister until Margret Thatcher’s Conservative Party took over from him after an election following a successful vote of no confidence on Labour Party’s Administration led by James Callaghan which was proposed by Margret Thatcher’s led Conservative Party.
In 1992, Margaret Thatcher set another precedent on succession to the premier position after resignation of the incumbent. In early November 1992, Margaret Thatcher had an audience with the Monarch and she informed the Queen of her intentions to resign as both the Prime Minister and the leader of the Conservative Party. While the Conservative Party engaged in the process of electing its leader who would ultimately succeed her to the Prime Ministerial position, she continued as Prime Minister. The Party elected John Major as her successor. On November 28, 1992 when an heir apparent to the 10 Downing Street was ready, Margaret Thatcher resigned and John Major was invited to head the government and was thereafter inaugurated as the new Prime Minister by the crown.
Another seminal precedence was set by Prime Minister Tony Blair. On 10 May 2007, in a speech at the Trimdon Labour Club, the then Prime Minister Tony Blair announced his intentions to resign as both the Labour Party Leader and as the Prime Minister. Just like his predecessors and as is the standard practice, Blair remained in 10 Downing Street until the processes of electing his successor were complete. On the 27th day of June 2007, Prime Minister Tony Blair resigned and the successor he recommended, Gordon Brown, was inaugurated as the Prime Minister on the same day.
The latest episode involved the resignation of former British Prime Minister Theresa May resigning as both the Conservative Party Leader and as the Prime Minister. On Friday the 3rd of May 2019, Theresa May announced her intentions to resign as leader of the Conservative Party on Friday the 7th June 2019 came as a result of her weakened position due to the House of Commons repeated rejection of Brexit settlement she had negotiated with Europe. As per the established practice and tradition, she remained in the 10 Downing Street as prime minister until Boris Johnson was elected as her successor. On Wednesday the 24th day of July 2019, Theresa May offered her resignation to Queen Elizabeth and almost immediately thereafter, Boris Johnson was invited to the Buckingham Palace to take the reign of being her Majesty’s first minister.
The Established Principle
The tradition which has been established is that the incumbent will only resign when there is an heir apparent to succeed as soon as the incumbent vacates office. In 1963, the then British Prime Minister Harold Macmillan announced his intention to resign, but due to the absence of an heir apparent, he remained in office while the Conservative Party engaged in ‘customary processes of consultation’. At the time of his announcement indicating his intentions to resign, Macmillan was obviously ill but the Queen’s Government had to be carried on. Scholars are of a view that immediate resignation would have forced an extremely hasty decision.
The principle is that the incumbent in the Downing Street (State House in our jurisdiction) remains in office until he or she is in a position to recommend a successor who is ready and able to form a government, one who can appear to command a majority in the House of Commons. The twist here is just that the Prime Minister can only nominate or recommend and the Council of State will advise the King accordingly. This practice, Professor Philip Norton of University of Hull notes, upholds the convention that the sovereign’s prerogative power becomes live only if and when the office of Prime Minister is vacated by the decision of the incumbent.
How the Successor is Chosen
There are two forms of investiture rule systems involved; positive and negative parliamentarism. Bergman proposes the distinction between positive formation rules, where a government must win a formal vote in parliament before assuming power, and negative formation rules, where an appointed government remains in office until the parliament votes a no confidence motion. Conceptually, the type of parliamentarism is rather identified in terms of parliamentary involvement in government formation. In order to determine which investiture rule Lesotho has adopted, a few demonstrated examples from the conventional practice in Britain where Lesotho adopted its parliamentary system shall be analysed.
For brevity considerations, the highlighted precedents provide straight-forward answer to the question on investiture rules involved in succession to the Prime Ministerial seat once vacated by the incumbent. From the succession of James Callaghan after Harold Wilson’s resignation in 1976 to the recent resignation of Theresa May and succession thereto by Boris Johnson, the successor need only be nominated by the incumbent to the Monarch who thereafter inaugurates the successor. For example, when Prime Minister Tony Blair resigned on the 27th day of June 2007, Gordon Brown was inaugurated as the Prime Minister on the same day. This clearly, is in fact evidence that Britain is an example of negative parliamentarism because no investiture vote is required before the successor is appointed or that the successor should be explicitly supported by a parliamentary majority in order to assume authority.
Just out of curiosity, would the King be obliged to accept a recommendation of the outgoing Prime Minister if out of malice recommends whichever member of the National Assembly whom he wishes? In other words would it, for the fact that the nomination or recommendation is tendered indicate that there is presumption on the part of the Prime Minister that whoever he chooses has any right by virtue of his title automatically to succeed him? An answer to this question is simple and straight-forward; however this essay does not claim that the margin below is too small to contain the proof lest it is accused of imitating Pierre de Fermat in conception of what was later known as Fermat’s Last Theorem or Fermat’s conjecture, but rather it is simply that the Monarch in appointment of a prime minister acts on advice of the Council of State. The recommendation would be exactly that – the King will not be obliged, in any way whatsoever to accept it.
Turning to Lesotho, section 87(1) of the Constitution provides that there shall be a Prime Minister who shall be appointed by the King acting in accordance with the advice of the Council of State. The Constitution of Lesotho of Lesotho further provides that under section 87(2) of the Constitution, 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 parties that will command the support of a majority of the members of the National Assembly.
It is a well-known doctrine that the constitution is not self-defining. Giving the abovementioned two sections a historically conventional interpretation, where no investiture vote is required, the King will exercise his prerogative and appoint the successor as recommended by the incumbent a member of the National Assembly who appears to the Council of State to be the leader of the political party or coalition of parties that will command the support of a majority of the members of the National Assembly. What this indicates is that the successor and his government will be tolerated until parliament adopts a motion of no confidence as a remedy if at the time of inauguration the successor lacked the necessary parliamentary support.
When the Prime Minister resigns, then it is generally the political party that the Prime Minister leads that chooses the successor. From the Westminster conventions, Lesotho adopted negative parliamentarism in both formation of a new government and appointment of a successor after resignation of the incumbent during a parliamentary term. In either case, the King shall use his royal prerogative powers to appoint the Member of the National Assembly who appears to the Council of State to be the leader of the political party or coalition of parties that will command the support of a majority of the members of the National Assembly as according to sections 87(1) and 87(2) of the Constitution.
Conventionally, the successor will be nominated and recommended by the outgoing Prime Minister just like in the Blair-Brown case. It is upon the nominee that the Council of State will advice the King. Conventionally the incumbent will nominate or recommend a name which is neither binding nor mandatory, either to the Council of State or the King or both, then the Constitution kicks in and the Council of State and the King take over from there. It is worth reiterating that this practice is principally based on negative parliamentarism which Professor Nyane alluded to in his post.
This essay has outlined the standard conventional practices at Westminster where an incumbent Prime Minister, individually decides to vacate Office. However, the unwritten nature of these conventions also presents challenges and as a result, this essay has three (3) recommendations aimed at enhancement of the constitutional provisions and feasibility in consistent application of the constitutional provisions:
- There is a need for clearly articulated descriptive guidelines and rules on succession to the premier position when an incumbent vacates to reflect the Westminster practices in order to maintain consistency of precedents in and around the Commonwealth. These guidelines should be carefully drafted to keep the crown out of fray of political controversies;
- The role of the outgoing Prime Minister has to be clearly articulate which includes whether the advice the incumbent issues to the King or the Council of State is just a mere nomination, a recommendation or an advice; and
- The role of the Council of State has to be unambiguously defined.
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