Is the Council of State a ‘white elephant’?

Is the Council of State a ‘white elephant’?

Recent developments in the country have prompted serious debate amongst politicians, legal scholars and ordinary citizens alike over the role and powers of the Council of State.
I shall strive to argue that the relevant constitutional organ is nothing but a white elephant especially in a setting where its role is that of ‘advising’ a constitutional monarch.
I shall deliberately avoid a mundane approach of engaging in political debates nor attempt to act like a tony intellectual who is well-versed in the dynamics of constitutional law jurisprudence and its dynamics.

Mine will be a limited attempt to present practical challenges which are presented by a body which is modelled around the Westminster type of governance model in a tiny African country like Lesotho whose evolution of institutional democracy is in its somewhat nascent stages as compared to Britain.
The turning point in the debate centres around the powers of His Majesty the King vis-à-vis the Prime Minister.

The country’s constitution is modelled in such a manner that the King is relegated to a ceremonial figurehead with no real and substantial executive powers.
The large proportion of constitutional powers if not all are vested in the Prime Minister and there is a very controversial provision in the constitution which provides that in the event of the King declining to act in accordance with the advice of the Prime Minister, the latter is at large to act on his own motion and such an act would be deemed to be that of the Head of State.

Perhaps even more poignantly, there is yet another constitutional provision which provides that if the King were required to act on the advice of the Council of State and fails to do so, the relevant organ may itself do the act and that act would be deemed to have been done by the King.

This latter constitutional provision presents a complex legal problem: Can the Council of State overrule the advice rendered to the King by the Prime Minister when the latter is himself a member of the relevant body and alternate chairperson in the absence of the King?

The recent developments in Lesotho’s constitutional law jurisprudence yielded a very sensitive but very relevant question which had been indirectly canvassed by politicians of whether Lesotho still needs to have a monarchy and whether it would not be in the best interests of the country if Lesotho transitions into a republic with the eventual abolishment of the institution of the monarchy and the entire royal aristocracy.

This would be a convenient solution for the politicians because theirs is a perception which can be safely categorised as “self-entitlement” to the extent that they attach a great value to the ballots and their electivity.

Their view is that a legitimate government derives from the mandate given by the electorate and they contrast their mandate to that of the monarchy which asserts itself from traditional forms of institutional power which manifests itself by right of birth.

In essence, the real fight has always been about the respective institutions’ contest for power.
There are those who favour the view that the Head of State should be one who is elected by the people not the one who assumes the reins by traditional institutions of royal aristocracy which transitions and evolves by virtue of birth.

One of the most powerful factors that count as a justification for the retention of the royal aristocracy was a somewhat ideological and romantic view that Basotho genuinely love the traditional institution of royal aristocracy and would resist any political revolution that compromises the role of the King and or the royal aristocracy as a whole.
Whether or not this is true, is something that can only be assessed through scientific evidence perhaps by way of a referendum.

But even then the real issue that needs to be debated and of which there has to be an engagement is whether the political elites who directly challenge the authority are doing that as an end of addressing an issue of public discourse or merely pushing self-serving ends.

Political power is the prime motivation behind the fragile relationship between political elites and the monarchy and Lesotho’s history bears witness to this factor.
With all those observations and daunting questions in mind I should be quick to throw the gauntlet by suggesting that the Council of State is one of the few constitutional institutions that are institutionally dominated by lawyers with a total of no less than four law graduates making up this entity.

It needs to be remembered that the chairperson of the Council of State, the King himself, has legal qualifications and he is flanked by the Attorney General, the Law Society candidate, the two puisne judges and by sheer coincidence, the current speaker of the National Assembly who is also a legally qualified public servant.

In hindsight, it is perhaps enlightening to note that the recent decision of the High Court sitting as a constitutional panel was a milestone moment in Lesotho’s constitutional law jurisprudence because it sought to define the limits of the exercise of the Speaker’s powers as an administrative head of the National Assembly.

Whether these “lawyers” have had a chance to realise and perhaps analyse the limits of power of this institution vis-à-vis those of the executive is a question that can best be answered by themselves in their respective individual capacities.

The Attorney General is evidently the most powerful member of this institution in his own right because of all the members of the Council of State he is the only one who sits in all three branches of government unhindered and sanctioned by the law.

He sits in cabinet meetings and effectively becomes privy to the formal discourses of the executive.
He also plays an instrumental role in the Judicial Services Commission (yet another very important constitutional institution) and plays a part in the appointment of judicial officers and he is also an ex officio member of the legislature.

The attorney general’s office has the sanction of the law and the office bearer of such a post has the potential to navigate between the institutions dominated by legal professionals and those dominated by politicians a very rare scenario that consolidates his personal bureaucratic power and the institutional power of the office of Attorney General.

How else in this constitutional setting can the Attorney General be enjoined to give and render transparent and independent professional legal advice when he is circumstantially inclined to lend an ear to policy considerations spearheaded by the executive (politicians) before advising the Head of State — His Majesty the King?

Of what value is the engagement of the Law Society in the political affairs of the state when the enabling Act that establishes it has the prime objective of exclusively serving the purpose of professional training and development of lawyers in private practice?

Is it not compromising the professional mandate of the organization by portraying the relevant member appointed by the Law Society as a political activist than a legal professional?
Yet another skewed aspect is the fact that two puisne judges form part of the Council of State — one may otherwise suggest that it is clearly against the spirit of separation of powers if sitting judges can engage with politicians in the Council of State.

What would be the implications of their advice that runs against the desired end of the Prime Minister? Any opposition to the policy suggested by the government could very well be seen to be an opposition not only in the literal sense but also in the institutional sense.

I am therefore inclined to suggest that appointment and engagement of sitting judges in the Council of State was clearly not a wise decision — the inverse would only be beneficial if it were “retired” judges.

The engagement of sitting judges in a politically charged institution like the Council of State compromises the institution of the judiciary.
In order to address the scope of this institution’s power one would have to evaluate the manner in which its “advice” is rendered to the King and whether this “advice” can overshadow that of the Prime Minister in his capacity as head of government. Quite ironically, the Council of State does not have any rules of engagement or formal guidelines which prescribe the procedure to be followed in the arrival of what constitutes ‘advice’ and this is one of the most glaring features of most institutions which are direct creatures of the constitution.

The impeachment tribunal (the convening of which the Prime Minister plays an instrumental role) for removal of judges is but one example. Is it practically feasible for the Prime Minister to render any ‘advice’ which is in conflict with the majority of the membership of Council of State? Can government bureaucrats who are constituents of the institution motivate an advice that runs contrary to the government’s policy?

To put it bluntly, can the commander of the Lesotho Defence Force and the Commissioner of Police in their respective capacities as members directly challenge the stance held by the Prime Minister? What would be the practical implications of that endeavour?

These questions are being raised to illustrate that the advice rendered by the Council of State is riddled with some practical bottlenecks. Recent developments on the political stage have clearly magnified its practical shortcomings. The politicians seemed to have harboured the view that the lobbying of some members of the Council of State to motivate the desired end of a particular political faction would be beneficial but this approach was clearly ill-conceived because the decision-making process of the Council of State is not done by way of votes or through the conventional democratic process – it is done by consensus and even then the discretion to take that advice lies in the chairperson (the King).

And even then, his exercise of discretion in the evaluation of what that advice amounts to has to be weighed against him being a constitutional monarch constrained by the constitutional limits of his powers particularly where those powers are at odds with the incumbent Prime Minister.

Yet another feature which perhaps requires interrogation has to do with the criteria employed in the appointment of other ordinary members. The appointment of other members with the exception of those who are products of formal institutions is perhaps purely the discretion of the chairman of the Council of State. But even then the criteria and or qualifications (if any) that one should meet are not spelt out.

I have sought to clearly motivate my view that the Council of State is a white elephant and I shall ultimately conclude that one of the issues that requires careful interrogation and debate is not necessarily that of the limitation of the power of the Prime Minister but also that of whether the institution of the monarchy and the royal aristocracy can be modelled absent the institution of council of state.

But even more importantly, the debate of the role of the monarchy and whether it still has a place in our democratic setting has to be interrogated irrespective of how sensitive it may be. On the same score, the constitutional powers of an incumbent Prime Minister also need to be subjected to scrutiny as a measure of control in the exercise of the head of government’s powers.

I am further forced to conclude that any constitutional reforms exclusively narrowed down to institutional reforms alone will not efficiently address the core issues. The integrity and dignity of the constituents of public institutions and or office bearers is also a factor that both electorates and policy-makers should evaluate in their assessment of a better constitutional model to follow.

*Monaheng Rasekoai is a former member of the Council of State and ex-president of the Law Society of Lesotho

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