AG roasts Speaker

AG roasts Speaker

…says Motanyane was wrong to block motion against Thabane

Maseru – ATTORNEY General Haae Phoofolo, the government’s legal advisor, has delivered a strong legal opinion that paves way for the parliament to topple Prime Minister Thomas Thabane through a vote of no confidence.

In a 12-page opinion, Advocate Phoofolo said Speaker of Parliament, Sephiri Motanyane, was wrong to block the motion of no confidence against Thabane.

Advocate Phoofolo handed the opinion to the clerk of parliament, Fine Maema, this week.

It reads like a gentle rebuke on the Motanynana but its implications on Thabane’s future as leader of the government are far-reaching.
Its main impact is to remove what are probably the last legal impediments to the push by a group of MPs to remove Thabane.

Maema had asked Phoofolo to advise if Motanyana was correct when he blocked the no confidence motion to oust Thabane. Motanyana had rejected the motion on the basis that it was no properly filed because it violated the constitution and the parliament’s standing orders.

Motanyana’s controversial decision was based on two arguments that were vociferous disputed by MPs who accused him of clutching at legal technicalities to protect Thabane.

His first argument was that the motion could not pass because initiator Motebang Koma, the Koro-koro MP, is a member of the ruling All Basotho Convention (ABC).

He reasoned that it was wrong for an MP to bring a motion that seeks to remove a prime minister who belongs to his party.

Motanyana’s also argued that the motion was faulty because it proposed to replace Thabane with Sam Rapapa, an ABC MP. He said Rapapa could not be prime minister because he is not a leader of a political party or a coalition that commands a majority in parliament.

But Advocate Phoofolo said these arguments were wrong because they could not stand the test of both the constitution and the parliament’s standing orders. He said Motanyana’s position was at variance with both the spirit and wording of the constitution.

Phoofolo pointed out that Motanyana’s ruling that only an opposition MP can bring a motion of no confidence is undemocratic and contrary the MPs’ right to “participate in the public affairs of the country as enshrined in Section 20 of the Constitution and the function of the parliament to exercise control over the executive”.

He said it is inconsistent with the idea that MPs elected by constituencies “should always be guided by their conscience and the best interests of their constituents”.

Advocate Phoofolo said the constitution is silent on when and who can propose the motion.

Even the parliament standing orders that Motanyana cited do not support his argument, he said.

He notes that Standing Order 111 that Motanynana quoted only says “a member may move a motion”.

The same standing orders, he argued, define a “member” an MP, without specifying from which side of the parliament they belong.

He said if the intention was that a motion of no confidence could only be submitted by an opposition MP then both the constitution and the parliamentary orders would have clearly said so.

“In my opinion, therefore, any member of the National Assembly, including government backbenchers as Hon. Koma may propose a Motion of No Confidence in the Government.”

He said his opinion is based not only on the wording of the law but also the historical context.

Historically, both the 1966 and 1993 constitutions stipulated that MPs will be elected through the First Past the Post (FPP). The Mixed Member Proportion only came into effect in 2001 through the fourth amendment of the constitution and changes to the National Assembly Election Act.

Phoofolo observed that the FPP had the potential to produce a one party parliament as happened in the 1993 election when the Basotho Congress Party won 79 of the 80 seats (The other seat was won by the BNP).

He said it is clear that both the 1966 and 1993 constitutions established a democratic system where the will of the majority prevails.

“It would be absurd to suggest that in such a system of Government, even if all except one of the members of the National Assembly decided to pass a No Confidence Motion in the Government of the day, they would not be able to do so because they all happened to belong to the ruling party.”

”It would not only be undemocratic, but it would also unreasonably take away the ultimate sanction of removal from power that parliament has at its disposal.”

Advocate Phoofolo also makes an equally forceful argument against Motanyana’s position that a ruling party MP cannot be proposed as a prime minister.

He says Motanyana relied on the literal interpretation of the Section 87 (2) of the constitution. This, he said, is not the proper way to interpret the constitutional instrument as it ignores the textual and historical context of the phase “a leader of a political party or coalition of parties.”

He says such an interpretation is incorrect because it gives rise to the “absurdity that a sitting Prime Minister may be rendered immune from removal from office if none of the other members of Parliament is a leader of a political party”.

In rejecting the motion the Speaker of Parliament also relied on Erskine May, a parliamentary authority originally written by British constitutional theorist and Clerk of the House of Commons, Thomas Erskine May.

Motanyana said the Erskine May authorities stated that a motion of no confidence an only be brought by a member of the opposition not a member of the ruling party.

Phoofolo however suggested that Motanyana could have misread Erskine May’s work because it does not say ruling party MPs cannot propose a motion of no confidence against the government.

He said the Speaker should not have relied on the British Constitution to override the provisions of the Lesotho constitution. If the Motanyana was in doubt he should have sought guidance from the constitution, he said. Advocate Phoofolo’s opinion is a major victory for MPs who have been pushing to remove Thabane.

It allows them to prod ahead with their plot to remove Thabane and replace him with Rapapa.

The opinion gives a new headache to Thabane who was probably hoping to buy some time while MPs haggled with the Speaker of the legality of the motion.

The MPs are now likely to shift efforts to the battle to force the government to reopen parliament which the Speaker said he adjourned until September for the winter break.The MPs however say the Motanyana made the hasty adjournment to prevent the motion.

Staff Reporter

 

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