Mokhothu judgment fundamentally flawed

Mokhothu judgment fundamentally flawed

THE constitutional judgment which was recently delivered by the High Court sitting as a constitutional court raises a number of interesting issues in need of further interrogation.  The case was instituted by the Democratic Congress (DC) deputy leader in his official capacity as official leader of opposition Hon MP Mathibeli Mokhothu, the Democratic Congress party, National Independence Party and Popular Front for Democracy party.
The respondents were the Speaker of the National Assembly Hon Sephiri Motanyane, the clerk of the National Assembly Advocate Fani Maema, the Minister of Law and Constitutional Affairs, Lebohang Hlaele, the Minister of Finance Hon. MP Moeketsi Majoro and the Attorney General Hae Phoofolo. All of them were sued in their official capacities.

The judgement starts off by setting out a summary of issues for debate and these are: parliamentary practice – whether point of order judicially reviewable – point of order that there is no leader of the opposition in the National Assembly because no opposition party has (1/4) of seats – ruling by the Speaker whose effect is to deprive the leader of opposition of occupancy of office, salary and other benefits attendant thereto as well as vetoing formation of coalition to nominate a member for the position of leader of opposition – rulings reviewed and set aside – constitution sections 16, 17, 81(1) 95(2) Members of Parliament Salaries Act, 1992.

The unanimous judgement, written by Judge Sakoane then goes to outline the points in issue before delving into points of order, the Speakers’ ruling, vacation of office and deprivation of salary, benefits and relief sought by applicants.
It is noteworthy to observe at this stage that the court later on ruled in favour of the main applicant arguing that he must not be deprived of his salary and other sumptuous benefits that go with his position in terms of schedule 1 and 2 of the Members of Parliament Salaries Act. These are outlined as follows:

l Salary equivalent to that of a deputy minister

l Fully furnished government house or equivalent payment in rent

l Free utilities defined as electricity, water and airtime for his cellular phones

l Tax free expense allowance

l Personal aide, gardener, and house keeper

l A chauffer driven car

l A utility vehicle

l 3 days leave entitlement

The judgement then goes on to explain the court’s interpretation of the parliament’s definition of the legal status of the leader of opposition – and the court disagrees with this definition preferring its own narrow interpretation of what leader of opposition is. We strongly disagree with the court.
According to the judgement parliament defines the leader of the opposition as one who commands the highest numerical majority of opposition parties. It goes on to define the official leader of opposition as one who not only commands the highest majority in opposition numbers but who also meets the computational threshold of ¼ or 30 seats of the 120 National Assembly seats.

The number 120 represents the total number of seats in the National Assembly and a quarter of that number represents 30 seats. This is the number which the official leader of opposition ought to command from his own party in order to qualify as official leader of opposition.
The judges argue that the Speaker’s decision to recognise one as leader of opposition but not as official leader simply owing to inability to command the required threshold of 30 seats from his own party is an anomaly.

We ask: how is it so? The judgement goes on to defend this skewed interpretation by saying that the leader of opposition ought not to be subjected to the rigours of numbers- testing; it’s sufficient that he simply has highest numbers in opposition ranks. This on its own should qualify him as official leader of opposition.

We humbly submit that the court’s interpretation is deeply flawed and self-conflicted. Worse it is grossly misleading as the threshold is an entrenched constitutional requirement. It does not fall from the sky nor is it the Speaker’s invention.
Mokhothu lost his grip on the threshold after former DC MP Tlohelang Aumane defected to the AD following the June, 3, 2017 elections. The defection pushed Mokhothu down to 29 from 30 seats which the party previously held.

The judgement goes on to defend its interpretation by defining – and logically justifying – the responsibility of the office of leader of opposition and in the process erroneously mixing him up with the official leader of opposition. On page 18 of the judgement last paragraph the judgement reads:
(28) Leader of opposition is not simply an ordinary member of the House. He enjoys an elevated status and performs functions which go with his exalted status. His constitutional duty is to oppose. He is the political watchdog for good governance and service delivery.

His duty is to ensure that an elected government stays the course of democracy and does not become an elected dictatorship. But it is a duty that goes along with the following responsibilities.

The judgement then sets out those responsibilities as follows:
28.1 He is the leader of shadow cabinet to identify the parliamentary tactics, formulate alternative policies, and to monitor performance of ministers
28.2 He leads the opposition in major debates, harrying the government and seeks to portray his strength and that of his party (TAKE NOTE: his party and not coalition of opposition parties)

28.3 He participates in the council of state to give counsel to His Majesty in the discharge of his constitutional affairs
28.4 He is entitled to be appointed Prime Minister when his party secures an overall majority of seats following the next elections
The list goes on and on but the above suffice for us to make our case. The court’s assertion, which they hold to be constitutionally valid, that the leader of opposition should not be subjected to numerical threshold of 30 seats as stipulated in the constitution is both flawed and misleading.

If for one to qualify as official leader of opposition does not have to meet the required numerical threshold of 30 seats, why should the leader who commands the majority of support in the National Assembly be subjected to the 60 + 1 in order to qualify as Prime Minister and by extension form a government?

Why can’t one, in order to qualify to be a prime minister also raise a similar argument that he does not have to meet the required constitutional threshold of 60+1? Simply being a leader of majority is good enough?
In the 2002, the BNP following the general election, sought and failed to have its leader in parliament then, Retired Maj. Gen Metsing Lekhanya declared as official leader of opposition.

At that time the BNP had the highest number of seats in the opposition ranks (25) but it did not meet the required numerical threshold of 30 seats.
It only commanded 25 seats and as a result Lekhanya could not be declared official leader of opposition. He was leader of opposition but could not assume the position of official leader.

The same thing happened to the ABC in 2015 after its coalition of opposition parties which named Dr. Thabane as its leader of opposition was rudely rejected by the then speaker Ms Ntlhoi Motsamai as unconstitutional.
The judgement’s inability to distinguish between leader of opposition and official leader of opposition entangles the judgement into all sorts of problems.

In order to avoid being self-conflicted the judgement argues that it is not a requirement in most democratic jurisdictions for a leader of opposition to meet any numerical threshold. He is recognised as such simply by virtue of him being leader of opposition regardless of whether he meets the threshold or not.

As such, the judges erroneously argue the National Assembly should adopt a similar approach. Once again this is a gross misdirection by the eminent justices. It runs counter to the entrenched provisions in our constitution which clearly stipulate how one qualifies to be recognised as official leader of opposition as opposed to mere leader of opposition.

The judgement misdirects itself again when it attacks the Speaker and accuses him of depriving the deputy leader of the DC of his benefits as leader of opposition. First of all it is not the Speaker who deprives the leader of opposition of his benefits if he constitutionally deserves them. It is the opposition’s leader’s inability to meet the required numerical threshold which deprives him of the benefits.

Equally speaking it is his ability to meet the threshold that invokes section 17 (1) on him which entitles him to these benefits.
The Speaker is not involved. His duty is only to make a declaration. And he did. Now Mokhothu is crying. What for?
The judges also virulently attack the Speaker for not responding to the opposition’s letters. The argument advanced by the court is that if the Speaker had responded to the letters this would have cured Mokhothu’s illness of numbers which he sorely lacks to meet the stipulated threshold.

That he did not respond to the opposition letters is raised as a defence for the flawed presumptive conclusion that he acted arbitrarily by making the declaration. Was this the Speaker’s fault? Why is the judgement blaming it on the Speaker as if it is him who wilfully deprived Mokhothu of the numbers required?

Once again we humbly submit this is a gross misdirection. The Speaker has no powers to deprive anyone of his constitutionally protected benefits; Mokhothu’s inability to muster the numbers required deprives him of these benefits.
Our advice to government is to appeal this judgement based on the reasons advanced above, and possibly more. The appellants have higher prospects of success in the appeal. The same goes with the recently delivered Mosito judgement. It ought to be appealed.

Rethabile Rathebane

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