Maseru, June 14 — The Court of Appeal has on Friday dismissed an appeal against a judgment of the High Court which declared unconstitutional the 9th Amendment to section 87 (5) (a) as well as section 83 (4) of the Constitution.
In its majority judgment prepared by President of the Court of Appeal Professor Kananelo Mosito with whom Justices Petrus Damaseb and Philip Musonda agreed, the court stated that the Amendment undermines the basic structure of the Constitution and the principle of public participation in democracy therefore should be invalidated and declared unconstitutional.
It declared that the declaration of constitutional invalidity of the 9th Amendment to the Constitution of Lesotho shall have prospective effect only. It said any actions taken, decisions made, or appointments effected under the now invalidated amendment prior to this order shall remain valid and enforceable. It emphasised that going forward, the relevant constitutional provisions shall revert to their pre-ammendment state and all future actions by the government and other constitutional bodies must conform to this court’s interpretation, upholding the principles of responsible government and parliamentary democracy.
The court indicated that the exclusion of the Prime Minister’s ability to advise the King to dissolve Parliament, as well as the King being obligated to appoint as the Prime Minister, a member chosen solely by the National Assembly without input from the voting public unquestionably diminishes the constitutional role of the sovereign.
“This apparent reduction of the King’s powers undermines a foundational tenet enshrined in section 1 of the Constitution which provides that Lesotho shall be a sovereign democratic kingdom”, said the court.
It emphasised that the principle of constitutional supremacy demands that the basic structure of the Constitution be inviolable. It said any amendment that strikes at the heart of the founding document and alters its core identity cannot be permitted. It added that allowing that would be to imperil the checks and balances crucial to democracy.
The court further added that a judge’s solemn duty is to the law itself, not to any political expediency. It pointed out that they must always be vigilant against any attempt to subvert the constitutional order, lest they sacrifice the ideals upon which the nation was founded.
Meanwhile, a minority judgment prepared by Justice Johann Van der Westeheizen in which Justice Moses Chinghengo concurred stated that the High Court misdirected itself in finding that the Amendment undermines the principle of basic structure. The two judges indicated that they would have upheld the appeal.
Democratic Congress (DC), Basotho National Party (BNP) and Popular Front for Democracy (PFD) approached the Court of Appeal after they lost the case against Puseletso Lejone, Speaker of National Assembly, the Prime Minister and others. The case was lodged by Lejone following a proposed motion of no confidence against Prime Minister Ntsokoane Matekane.
When addressing the Court of Appeal, the appellants had asked the Court to support a minority judgment made by the High Court which was sitting as the Constitutional Court in this matter.
Their Legal Representative Advocate Monaheng Rasekoai argued that a pathway to constitutional review is through section 22 of the Constitution. He added that rule of law review should be rights-based. He emphasised that there is no jurisprudence that supports the rule of law review as opposed to rights-based review. He said one cannot stage the rule of law initiative without implicating rights.
He stated that there was no vote of no confidence yet therefore there was premature reaction caused by the litigation. He indicated that litigation can be initiated when there is violation of rights. He pointed out that the litigant before the High Court had no locus standi to have brought the application as the motion of no confidence is against the Prime Minister not him.
Adv. Rasekoai further argued that the minority judgment cannot be faulted. He thus asked the Court of Appeal to consider it in their favour and allow the appeal to succeed.
Legal representative for some of the respondents in the appeal, Adv. Motiea Teele (KC) argued that democracy as provided for in the Constitution has been tampered with. He stated that the manner of exercise brought about by the 9th amendment brought confusion. He said the rights of the people were not taken into account.
He pointed out that all organs of the state should be accountable as provided for under the Constitution. He stated that if one has sufficient interest in a matter, they have locus standi and can come to court. He asked that the appeal be dismissed.
The High Court sitting as the Constitutional Court had issued two judgments, one by Justice Keketso Moahloli which was different from one written by Justice Molefi Makara in which Justice Tseliso Monaphathi concurred.
The two judges had in their majority judgment declared as unconstitutional, the 9th Amendment to section 87 (5) (a) as well as section 83 (4) of the Constitution. They stated that the provisions of the amendment violate the democratic structure of the Constitution of Lesotho.
They declined to decide on a prayer by the applicant that the process of passing the vote of no confidence in parliament be deferred pending the conclusion of the reforms process in terms of which the Parliament shall promulgate the comprehensive provisions to regulate the passing of vote of no confidence.
In the minority judgment, Justice Moahloli said he was unable to agree with the conclusion and order in it. He stated that he found that there is a procedure provided for in section 85 of the Constitution regarding alteration of the Constitution. He pointed out that this procedure had to be done adding that if that was done, the alteration was unassailable.
He added that the purported alteration allowing the prescribed procedure but violating basic structure of the Constitution might not qualify as alteration at all. He indicated that none of the amendments in this case conceivably fall within categories of amendments which are basic to the Constitution to destroy it.
Justice Moahloli further stated that the model of motion of no confidence contained in the Constitution is not an unchangeable cock of the basic structure of the Constitution. He said it may be altered using basic structures of the Constitution.
He thus concluded that, based on the finding, the prayer requesting that the 9th amendment to sections 83 (4) and 87 (5) of the Constitution be declared unconstitutional to the extent that it violates the basic structure of the Constitution per section 1 of the Constitution of Lesotho, would be dismissed.
Furthermore, the judge stated that he is of a view that the court has no authority or competence to issue the order that the process of passing the vote of no confidence in parliament be deferred pending the conclusion of the reforms process in terms of which the Parliament shall promulgate the comprehensive provisions to regulate the passing of vote of no confidence.
He remarked that the doctrine of separation of power does not allow the court to interfere in the process of legislature. He said that prayer too would be dismissed.
