The crisis of constitutionalism in Lesotho

The crisis of constitutionalism in Lesotho

The advent of coalition politics in the aftermath of the inconclusive 2012 election brought with it fresh challenges to constitutionalism in Lesotho. The challenges started with the process of the formation of government, sustenance of a coalition, and much more importantly, the executive powers of the office of Prime Minister.

The country transitioned into the era of coalition politics with the same constitutional and legal framework which undergirded government in a single-party majoritarian setup. It did not take long until the country was plunged into a constitutional crisis which manifested itself through a stand-off between the Prime Minister and the Deputy Prime Minister.

The crisis led to the collapse of the coalition government, the purpose of this chapter is to analyse the nature of this constitutional crisis by studying the various constitutional episodes which characterised this crisis in 2014.
The chapter contends that while some of these episodes may qualify to be called ‘constitutional crises’, not all incidences of political disagreement amounted to that.

The development of constitutional democracy in Lesotho took a fresh turn in the aftermath of the 2012 election. The outcome of the 2012 election in Lesotho was a watershed in two fundamental respects.
Firstly, it was the first time since independence that the electorate peacefully changed the government through the ballot. Secondly, it was the first time that election results were inconclusive as there was no single party with the requisite majority in the National Assembly to form government alone.

Therefore, the election ushered-in the era of coalition politics (Makoa, 2012). The three parties that managed to put together a hairbreadth majority to form government were All Basotho Convention (ABC), Lesotho Congress for Democracy (LCD) and Basotho National Party (BNP). Since then, major challenges for Lesotho have been on the areas of formation and running of coalition government.

The challenges were in three areas: the process of the formation of government, sustenance of a coalition, and, much more importantly, the executive powers of the office of Prime Minister. The country transitioned into the era of coalition politics with the same constitutional and legal framework which undergirded government in a single-party majoritarian setup.

It did not take long until the country was plunged into a constitutional crisis which manifested itself through a stand-off between the Prime Minister and the Deputy Prime Minister. The crisis led to the collapse of the coalition government, barely two years into the normal electoral cycle.
The purpose of this chapter is to analyse the nature of this constitutional crisis. It contends that, while certain constitutional changes are desirable in order to enhance constitutional democracy in Lesotho, the Constitution was not necessarily the cause for the collapse of the country’s first coalition government.

The chapter starts-off by conceptualising the trendy notions of constitutionalism and constitutional crisis, then proceeds to analyse the key constitutional episodes which have come to define this new era in the development of constitutional democracy in Lesotho.

Conceptualising Constitutionalism and a Constitutional Crisis

In its classical conception, constitutionalism means the limitation of political power (Vile, 1998). In contemporary liberal politics, it occupies two awkward and somewhat contradictory positions–both as the adversary and as the necessary requirement of democracy (Murphey, 2007).
On the one hand, constitutionalism becomes an adversary of democracy when it places fetters on the ability of elected representatives to do as they please (Luckham et al., 2003). That is why sometimes the perpetual strife between democracy and constitutionalism is called a counter-majoritarian dilemma (Friedman, 2001).

Elected representatives normally feel offended when the constitution gives appointed officials the power to correct and review decisions of people who have been elected by the population through a democratic process.

On the other hand, constitutionalism is a necessary prerequisite of democracy because by its inherent ability to limit the power of political players, it helps create rules and frameworks within which power must be exercised. Thus, democracy devoid of these frameworks can be simply self-destructive.
In fact, when a constitution is either dead or weak on the limitation of powers of state institutions, constitutional scholarship refers to it as a ‘facade’, or ‘constitution without constitutionalism’ (Sartori, 1962; Zhang, 2010). In such situations, democracy has a huge deficit.

Ever since the return to electoral politics in Lesotho, in 1993, constitutional democracy has been based on single-party majority.
When a country is in a single-party dominated political system, constitutional studies have confirmed that a constitution becomes dormant and a breeding-ground for what Hadenius and Teorell (2007) call ‘non-democratic regimes’.

In that setup, the ruling political majority unanimously agrees on the interpretations of the constitution, there is no genuine disagreement. Disagreement is normally kept at minimum.

Lesotho has not been an exception to this phenomenon. The single party dominance which characterised the development of democracy in Lesotho, since 1993, had created a constitutional order which was never really tested by disagreement in the political sphere.

The real test to the constitutional order came only in the aftermath of the 2012 election when it became apparent that single party dominance had fizzled as the cornerstone of electoral politics in Lesotho. The country then entered an entirely new era of shared political power in the form of coalition governments.

In a similar manner, constitutionalism braced itself for a fresh test in Lesotho because disagreement was going to be genuine, as opposed to previously when it was conveniently kept at its bare minimum. As Nelson (2016) pointedly contends, commitment to democracy requires a pledge to the sustained negotiation and cultivation of disagreement. Disagreement, according to Nelson, ‘is not democracy’s problem, it is its strength’. It enhances limitation and balances that are necessary for constitutionalism to thrive.

From its inception, the idea of constitutionalism was intended to guard against the possibility of the tyranny of government. In essence, constitutionalism is predicated on the presupposition of pluralist view of a political society (de Smith, 1969).

It is based on the idea that, the different branches of government, as well as other political interests, are in perpetual conflict, and would continually seek to balance each other. This, therefore, suggests that, conflict and opposition are inherent to modern conceptions of constitutionalism.
As Levinson and Balkin (2009) pointedly posit, in contemporary constitutional discourse, conflict between political actors is the norm rather than exception. Hence, not every political disagreement, however heated it may be, should be allowed the status of a ‘constitutional crisis’.

In Lesotho, in 2014, hardly two years after the epic 2012 political change, it became apparent that the tripartite alliance was going through a rough patch.

The heated disagreement between the Prime Minister and his deputy led to incessant political conflicts, some of which qualified as ‘constitutional crises’, while others did not.

While political crises invariably lead to constitutional crises, care should always be taken not to confuse every ‘political crisis’ with a ‘constitutional crisis’. Levinson and Balkin (2009: 714) capture the disjunction rather adroitly when saying that,
The secret… is to think about crisis not in terms of constitutional disagreement but in terms of constitutional design. Disagreement and conflict are natural features of politics. The goal of constitutions is to manage them within acceptable boundaries. When constitutional design functions properly, even if people strongly disagree with, and threaten, each other, there is no crisis.

The authors prefer a narrow approach to constitutional crisis. They limit it only to situations of constitutional breakdown which may arise either because the political players have abandoned the constitution completely or because following the constitution leads to a disaster.
If the central purpose of constitutions is to make politics possible, a constitutional crisis marks moments when constitutions threaten to fail at this task (Whittington, 2002; Levinson, 2006).

While a constitutional breakdown is the most overt form of constitutional crisis, Griffin (1996) suggests that the designation of a constitutional crisis may be appropriate also in situations when the apparently normal operation of the constitutional system produces a continual sense of political uncertainty and unease.

This extension of the notion of constitutional crisis is controversial since it has the potential to open up the definition for all sorts of constitutional and political uncertainty.

Whittington (2002) contrarily contends that it does not seem to be the essential function of constitutions to eliminate political worry; therefore it cannot be regarded as the failure of the constitution if political unease exists within a constitutional order.

In his view, a constitution is thrown into crisis when its prescriptive structure cannot be realised in practice, or is inadequate to achieve its goals. This is the situation where “the imagined constitutional order may no longer be consistent with and is unable to contain the politics on the ground” (Whittington, 2002: 2199-2200 ).

The use of the phrase ‘constitutional crisis’ should be reserved for those situations when a constitution can no longer attain its fundamental objective of ‘making politics easy’.

Political crisis and constitutional crisis should be distinct for, as Withington (2002) suggests, political crisis need not implicate the constitution, and constitutional crisis need not have dramatic consequences for the political system.

The succeeding discussion of the many political episodes in Lesotho in the short period of the first coalition government sheds some light on the nature of crises which confronted the country’s constitutional order in that period.

Vote of No Confidence

The beginning of 2014 was studded with many political incidences which presented challenges to the coalition government formed two years earlier. However, the real constitutional issues started in May, 2014, when two members of parliament from All-Basotho Convention (ABC), Mophato Monyake and Thabiso Litšiba defected from government, thereby inflicting a blow to a coalition government which already had a thin majority of one in a 120-member National Assembly.

Defection of members from government benches meant that government had lost majority in the National Assembly, and no longer met the terms of section 87(2) of the Constitution of Lesotho.

It is apposite to note that, in terms of the constitutional schematisation in Lesotho, although confidence of the National Assembly is the touchstone of government, when government loses the support of the majority of the members of the National Assembly, it does not automatically lose power. Section 87 (5), read with section 87 (6) of the Constitution, provides for the substantive and procedural requirements for vacation of the office of the Prime Minister, which is the cornerstone of government in terms of the Constitution in Lesotho (Attorney General vs His Majesty the King, 2015).
The procedural requirements imposed by section 87(5) are that, even when it is abundantly clear that government has lost majority in parliament, there is still a need for a successful motion of no confidence by the National Assembly.

When the motion has been passed by the National Assembly, the Prime Minister still has two options: either to resign or advise dissolution of government which would trigger the processes of the election of a new parliament within three months.

Thus, technically, it is possible that a Prime Minister can remain in office despite having lost support of the majority of members of the National Assembly; in other parliamentary democracies this is called minority government (Knopff and Snow, 2013); in Lesotho, the situation obtains as long as the procedural requirements for vacation of office by the Prime Minster remain unsatisfied.

Aware of those procedural requirements created by the Lesotho Constitution, the opposition sponsored a motion of no confidence in the government. Since government had lost majority in the House, prospects for the success of the motion were high.

The Constitution of Lesotho envisages a constructive motion of no confidence (sec. 83(5)). This allows parliament to pass a motion of no confidence only when there is an alternative successor with a requisite majority (Bergman, 1993). Hence, the motion of no confidence which was tabled proposed that, former Prime Minister, Pakalitha Mosisili, should form government.

When relations between ABC and LCD continued to plummet, LCD supported the motion of no confidence without necessarily defecting from government. The constitutional issue, at the time, was whether a party which is in government could support a vote of no confidence against a government to which it is part.

Neither does the Constitution expressly provide for this scenario nor is there any precedent which can be followed in Lesotho. The matter was not decided in the courts, as the case which was instituted by ABC and BNP members to raise these issues was not litigated to finality due to other fast-paced political developments at the time.
While there is no precedent in Lesotho, either legal or from parliamentary practice, where a party which is still in government initiates, or supports, a vote of no confidence against the government, it would seem that constitutional practice in Lesotho does not necessarily prohibit it.
In terms of the Constitution, a motion of no confidence is raised individually by a member of parliament (MP).

This, therefore, means even individual MPs from government side can initiate, or support, a motion of no confidence against government. That this is possible can be seen in the decision of the High Court of Lesotho in the case of Ntsu Mokhehle v Molapo Qhobela and Others (1997).
In this case, Mokhehle, who was the Prime Minister of Lesotho and leader of Basutoland Congress Party (BCP), had fallen out of favour with his own executive committee. Because of that, the party’s executive had organised a party conference to remove Mokhehle from the position of party leader.
At the time, it was not clear whether Mokhehle’s removal from party leadership had a bearing on his position as Prime Minister. His own view was that, being party leader was not a condition necessary for the office of the Prime Minister.

The court made a fine distinction between the two. It held that the Prime Minster is the creature of the National Assembly. Members of the National Assembly are empowered to vote for the Prime Minister and to remove him. The court held that:

It is clear from the above that in all the happenings in parliament, the BCP as a political unit does not feature prominently. Its members are recognised by the Constitution as individuals despite the use of the term political party in the Constitution . . . The party does not feature by law in the making or unmaking of the Prime Minister (italics added).

Based on this decision, the then Prime Minister defected to form a new party, Lesotho Congress for Democracy (LCD) in 1997, with majority of the members of the National Assembly; his position, as the Prime Minister, did not change.
It would, therefore, seem that, MPs from the government side can raise, or support, a motion of no confidence against the government as individuals.
Although the motion of no confidence against ABC-LCD-BNP coalition government could not be pursued to finality, it would seem that, the process did not raise any threat of a constitutional crisis. The processes squarely fitted within the four corners of the Constitution.

It raised some constitutional issues which had no precedent in the constitutional practice in Lesotho but it was not anywhere closer to a situation of a constitutional crisis.

Prorogation of Parliament

Against the background of loss of the majority and threats of motion of no confidence, in June, 2014, Prime Minister Thomas Thabane prorogued parliament, in terms of section 83 of the Constitution of Lesotho. The section empowers the King, at any time, to prorogue parliament upon the advice of the Prime Minister. Together with dissolution and summoning of parliament (Hicks, 2012), prorogation of parliament is one of the antique prerogatives of feudal kings which, with the ascendancy of electoral democracy and adoption of political dispensations—such as the Westminster constitutional design—kings exercised upon advice of their prime ministers.

These conventions were implanted in independence constitutions of Britain’s former colonies, such as Lesotho. Under British conventions, the prerogative existed as a form of adjourning a session of parliament. It is classically the preserve of the King, whereat he delivers the prorogation speech and reviews the work of the session that was.

Prorogation in Lesotho is still cast in the classical mould. In classic British parliamentary practice, parliament was literally a chamber of the sovereign so much that it could only meet at his pleasure. It was entirely up to him to summon, prorogue, or, even, dissolve it depending, on his own conveniences (Markesinis, 1972). A monarch could even abuse the prerogative so much that parliament would only be summoned to transact the executive business, such as approving the budget and other policies, after which it could be sent on prorogation. Once prorogued, parliament could only come back on summons by the sovereign. Thus, in its nature prorogation has always been susceptible to abuse.

Circumstances in which a parliament can be prorogued have remained unclear. In constitutional monarchies such as Lesotho, it is a prerogative used to remind parliamentarians of the humble origins of parliaments. In fact, under modern Westminster designs, a lot of the powers which are de jure wielded by the monarchs have de facto shifted either to the cabinet or to the Prime Minister (Jennings, 1969).

Amongst the modern parliamentary designs, Lesotho’s model is similar to the Canadian design. While in Lesotho the de jure powers are reposed in the King, in Canada they are enjoyed by the Governor General upon the advice of the Prime Minister. The most recent lesson from Canada on prorogation, which arguably inspired prorogation in Lesotho in 2014, was in 2008.

Like all developed economies, in 2008 the Canadian economy experienced difficulties that came with financial crises of that year. Against enormous opposition and criticism, the Prime Minister, Stephen Harper—who led a minority government—was able to convince the Queen’s representative (and, therefore, equivalent to the King in Lesotho), the Governor-General, to prorogue Parliament in order to allow him time to deal with the economic crisis. Among others, and as in Lesotho, the Prime Minister was accused of proroguing parliament in order to avoid a motion of no confidence.

Hogg (2009), one of the leading constitutional authorities in Canada, contends that while the Governor General would ordinarily accept the advice from the executive, he may, under exceptional circumstances, reject the advice. He contends further that the imminent vote of no confidence is one of the exceptional circumstances which empower the Governor General in Canada to exercise discretion and reject the Prime Minister’s advice. When commenting about the 2008 prorogation in Canada, the author contends that,

While the Byng-King dissolution of 1926 is not a close analogy to the Harper-Jean prorogation of 2008, it is a precedent for the proposition that the governor general has a personal discretion when a Prime Minister tenders advice the effect of which is to preclude the House of Commons from passing the judgement on his government(Hogg, 2009-2010:198).

There are other scholars who argue that the Governor General can hardly refuse the advice of the political executive (Russel, 2011). According to Nicholas and James (2011),
In Canada, the entrenchment of responsible government in 1848 transferred the bulk of Crown’s powers from the Governor to the political executive, which now exercises them in the name of the Crown. Responsible government means that . . . the monarch or his or her representative is bound by constitutional convention to follow and carry the advice of Prime Minister . . .

A closer look at Lesotho constitutional schema favours the latter approach. Confidence is still the footstool of government in Lesotho, just as it is in the United Kingdom and Canada to the extent that a government without confidence of parliament in Lesotho would be an affront to the true spirit of the Constitution. Ordinarily, a government which suspends parliament to perpetuate its rule without confidence of parliament is an enigma under the broader constitutional schematisation in Lesotho.

However, the way prorogation is cast under the Constitution of Lesotho is slightly unique, and merits circumspection. Firstly, section 83(4) seems to empower the Prime Minster to advise the King without exception. While the section empowers the King with discretion to refuse dissolution of parliament on the advice of the Council of State, the same discretion does not seem to obtain in relation to prorogation.

The powers to prorogue and to dissolve parliament seem to be couched differently in Lesotho. Both of them are exercisable by the King acting in accordance with advice of the Prime Minister but the discretion of the King is retained with regard to dissolution but not with regard to prorogation. It would therefore seem that the prerogative of prorogation has effectively shifted almost wholly to the Prime Minister in Lesotho.

Secondly, the Constitution of Lesotho appears to constrain the King in situations where the Prime Minister advises prorogation, even when the intention is to avoid an imminent vote of no confidence, because of the procedural requirements of the vote of no confidence in terms of section 87(5) of the Constitution. Unless a successful motion of no confidence is passed by parliament, it is hard to conclude that government has lost confidence in the House.

Any other suggestion would be presumptuous. There seems not to be any process under the Constitution by which it can ‘appear’ to the King that his government has lost confidence of the House except through a successful and constructive motion of no confidence.

Thirdly, due to its peculiar history (Proctor, 1969), the Constitution of Lesotho is structured, in such a way that the King cannot refuse the advice of the Prime Minister. Section 91(3) provides that if the King refuses the advice of the Prime Minister, the latter may do that act and then report to parliament.

It should seem therefore that in terms of the current constitutional schema in Lesotho, prorogation is the effective preserve of the Prime Minister; the Constitution does not seem to put any limitations on the exercise of that power. This, of course, lends it to the potential of abuse by the Prime Minister.

This schema is crying out for reform. The Constitution may be improved by introducing the notion of regular prorogations where parliament is prorogued annually to provide for regular sessions of parliament. The exceptional circumstances under which the regularity rule may be deviated should also be expressly provided for.

Hoolo ’Nyane

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