Blow for opposition
MASERU – King Letsie III “acted constitutionally and lawfully in terms of the Lesotho constitution” when he dissolved parliament last month.
A panel of five High Court judges sitting as the Constitutional Court on Monday said the king had not flouted the law when he dissolved parliament.
King Letsie III dissolved parliament in early March after Prime Minister Pakalitha Mosisili lost a no-confidence vote.
Top human rights lawyer, Advocate Haae Phoofolo KC, and Basotho National Party (BNP) deputy leader, Joang Molapo, were challenging the king’s decision to dissolve parliament and call a fresh election on June 3.
The two’s lawyers, Advocates Koili Ndebele and Monaheng Rasekoai, argued the king’s decision to dissolve parliament without first seeking the advice of the Council of State “was in violation of (his) constitutional duties and obligations”.
Justice Teboho Moiloa, speaking on behalf of the panel of judges, said King Letsie III “acted constitutionally and lawfully in terms of the Lesotho constitution”.
“The prayers cannot be sustained and are therefore refused,” Justice Moiloa said.
The applicants wanted the court to declare if King Letsie III’s decision to dissolve parliament and call an election was reviewable.
They asked this question because of section 91(5) of the constitution which says “where the King is required by this constitution to act in accordance with the advice of any person or authority, the question whether he has received or acted in accordance with such advice shall not be enquired into in any court”.
Section, 155 (8) provides that where “any person or authority is authorised or required to exercise any function after consultation with some other person or authority, the person or authority first referred to shall not be required to act in accordance with the advice of the person or authority and the question whether such consultation was made shall not be enquired into in any court”.
The lawyers argued these sections give the King absolute powers to act as he pleases without due regard for the standards of legality which judges set for the conduct of those in public office, such as authorisation, regularity, fairness and reasonableness.
“The ripple effect of the above-captioned sections is that they can effectively be branded as ‘constitutional ouster clauses’. These are clauses which are intended to prevent the court from exercising its review jurisdiction over specified decisions of public functionary,” they argued in their papers.
“It is respectfully submitted that there is a strong judicial antipathy towards ouster clauses,” they said.
The opposition’s lawyers argued that the legality complained of relates to the express constitutional requirements which can be exceeded in the literal sense – the authority of the King to act without taking advice from the Council of State and yielding exclusively to the advice of the Prime Minister who had been ousted through the vote-of-no-confidence.
“Section 91(1) states in no uncertain terms that (the King) can only exercise his functions under the constitution in accordance with the advice,” they argued.
Referring to section 83 (4) (a) they argued that it expressly says if the Prime Minister recommends dissolution and the King considers that the government can be carried on without a dissolution he may refuse to dissolve parliament.
The same section also says the King, acting in accordance with the Council of State, may refuse to dissolve parliament if he considers that dissolution would not be in the best interests of Lesotho.
The opposition lawyers said the key words and phrases in this section are “the King considers” and “acting in accordance with the Council of State”.
They argued that the word considers, as defined by the Concise Oxford Dictionary, means examining the merits of (a course of action, claim etc).
They said the King had the duty to examine the merits of the Prime Minister’s proposal to dissolve parliament before agreeing to it.
“It is clear therefore that it is his duty to examine the merits in issue,” read the papers filed in court.
“This is the function under Section 91(1) and that consideration or examination shall be and must be done in accordance with the advice of a recognised body or authority under the constitution,” it reads. The constitutionally recognised body here is the Council of State.
They said where the King acts in contravention of the constitution, the court will have powers to interpret the constitution and correct him.
The lawyers argued that the king had acted “irrationally” when he dissolved parliament without first seeking the advice of the Council of State.
They said the King’s decision was premised on “ill-driven or irrelevant considerations”.
The lawyers said the King should not have sought the advice of an outgoing Prime Minister but should instead have sought the advice of the Council of State.
However, the court ruled that the arguments lacked substance.
Justice Moiloa said the constitutional section in reference “did not prescribe the king ought to act with the advice of the Council of State in circumstances where the Prime Minister acted within three days to tender advice for dissolution of parliament”.
“On the contrary it is clear that if the king receives advice from the Prime Minister within three days after losing a vote of no confidence, he can act according to the advice of the premier alone,” Justice Moiloa said.
He said “in interpreting provisions of the constitution . . . we adopt a remedial approach in order to give the constitution purpose and meaning that avoids calamitous results that could cause collapse of the state and paralysis of its functions”.
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