An unprecedented turn of events occurred in the National assembly when Members of Parliament of the largest party in the coalition inclusive of the Right Honourable Prime Minister Thomas Thabane wrote to the Speaker of the National Assembly and announced their withdrawal from the 4×4 government that until 11th May 2020 had been government in Lesotho.
As Basotho, we have witnessed a number of governments changing in parliament. We saw Mr. Mosisili form the Democratic Congress and subsequently government moving from the Lesotho Congress for Democracy to the Democratic Congress. We also saw Mr. Mosisili losing a motion of no confidence in the National Assembly and the country ultimately heading for snap elections.
We have however never seen a Prime Minister withdraw from a coalition which he leads. Such novel events make one wonder the reasoning behind them as well as its implications, either legally or politically.
As it is widely known, Lesotho is a constitutional democracy hence the constitution is the supreme law of Lesotho. Before the 9th Amendment, the constitution foresaw two events which could have led to the removal of a sitting Prime Minister. One, a motion of no confidence being tabled and the Prime Minister losing it, after which he either resigns or advices dissolution of parliament. This has since changed with the enactment of the 9th Amendment to the Constitution.
Secondly, a situation where after elections, the Prime Minister no longer enjoys majority support in the National Assembly. Section 152 (1) of the constitution also provides for resignation of a Prime Minister like any other office bearer elected to hold office through the constitution. It is of material importance to highlight these scenarios because the Prime Minister is not divorced from government in the constitution.
If the framers of our constitution have provided us with clear procedures on how to withdraw support from the PM and consequently the government, why then did the speaker of the National assembly allow the MPs to misdirect themselves through the purported withdrawal from the coalition? One may argue that the withdrawal of support was a conditio sine qua non to the resignation of the Prime Minister but that is not necessarily true as I will demonstrate below.
Section 152 (1) of the constitution provides for resignation of the Prime Minister by stipulating that any person appointed, elected or otherwise selected to any office established by the constitution may resign by writing to the appointing authority, in the case of the Prime Minister it would be to the King.
Section 90A of the constitution (as amended by the Ninth Amendment) further provides that when a Prime Minister resigns, the King shall appoint a member of the National assembly who appears to be the leader of a political party or coalition of political parties that commands the support of the majority of members of the National assembly as Prime Minister on the advice of the speaker. It is clear that the constitution does not provide for the “withdrawal petition”, instead it provides for resignation of the Prime Minister, without any condition precedents.
Section 83 (4) (a) of the constitution (as amended) states that if the National assembly passes a resolution of no confidence in the government of Lesotho, then the Prime Minister will resign if the resolution of no confidence proposes a name of a member of parliament for the King to appoint in the place of the Prime Minister. The amendment has made things more relaxed for the MPs as the fear in such motions was always that the Prime Minister may advice dissolution resulting in snap elections which posed a risk on MPs as some would probably not return to parliament. Yet, with the amendment in place, the Prime Minister is estopped from advising his Majesty.
Looking at the clarity offered by the constitution, it poses a headache on why the MPs would decide to adopt such an innovation. If indeed Mr Thabane supports the withdrawal because he plans to retire and they have fallen out of favour with other coalition partners, why then did he not resign? If the MPs were indeed withdrawing support from Thabane, why not go the traditional route of a motion of no confidence?
The reality seems to be that this innovation has been adopted for political expediency. However, the sad reality is that such innovations are only expedient if all parties agree to finality, and knowing politicians especially Mr Thabane, that hardly happens.
The ABC is attempting to have its cake and eat it, but such a situation is not created by the constitution. The ABC seems to be creating a situation where Tom Thabane will only relinquish power when he decides it is time for him to do so, while also appeasing the opposition in his premiership by making the said opposition part of government.
As Basotho, we all know too well how quickly a foe becomes a friend when he too gets a piece of the proverbial pie. The resignation or otherwise of the Prime Minister remains a stumbling block. The situation created by the MPs in the National Assembly and indeed the speaker through the ruling have created a potential constitutional landmine for as long as Mr Thabane does not resign. The Council of State has no business in the appointment of a new Prime Minister because such vacancy does not exist. Mr Thabane does not have any constitutional obligation to retire or resign, what occurred on Monday, 11th May 2020 was a withdrawal from the configuration of the coalition which said nothing on Thabane’s status as Prime Minister.
Mr Thabane has on numerous occasions highlighted that he has the intention to retire as he is old and weary, and that he will do so when all the necessary conditions for his retirement are met. It has never been explicitly stated what those conditions are. However, one can only assume.
Mr Thabane and his wife face indictment for murder, he has since instituted a constitutional challenge against his prosecution as a sitting Prime Minister. He clearly does not want to be prosecuted. It is therefore reasonable to infer that one of such conditions for his retirement is that he and his wife should not face prosecution. His only bargaining chip at the current moment is his retirement. Thabane remains Prime Minister and he is under no legal obligation to resign or retire, it therefore states that for the new coalition to govern without him at the helm, his conditions and that of his sect need to be met.
The constitution as the supreme law in Lesotho is clear on removal of the Prime Minister or government, it was deliberately not followed and suddenly when this was done an overwhelming majority supported it, including Thabane whom we are to believe is the one being removed. The reason is simple, this setup benefits him directly. The situation created leaves uncertainty where Thabane’s illegitimacy remains a purely pedestrian issue as it has not been tested in Parliament through constitutionally stipulated channels. The framers of our constitution deliberately avoided this situation to prevent us from constitutional crisis.
If Thabane refuses to resign, what will happen, who will force him to? If parliament resorts to go back through the route of a motion of no confidence, the motion will be on which government? Such questions are a rhetoric we as a country should not find ourselves in, Mr. Motanyane by allowing the petition created a bad precedent in our democracy.
Mokotsolane Rapelang Mosae is a Human Rights Lawyer and a governance scholar based in Maseru.
Disclaimer: The views expressed herein are those of the author; they do not necessarily reflect the views of Selibeng.com.