Africa-Press – Lesotho. Below is a statement written by three lawyers – Advocate Karabo Mohau KC, Advocate Napo Mafaesa, and Advocate Kabelo Letuka – in response to the government’s attempt to recall parliament. The statement was written exclusively for thepost newspaper.
Should parliament be recalled? Things being normal this is a question that would not merit an answer at all given the reasons advanced for recalling of parliament, namely to come and pass 11th amendment to the constitution of Lesotho.
But given the fact that is what parliament is being recalled for is a clear abuse of the provisions of the constitution relating to the recall of the parliament. We feel duty-bound to voice our strongest opposition to this contemplated violation of the constitution of this country.
We have sight of the fact that on 11 July 2022, Legal Notice No. 62 of 2022 proclaiming the existence of a State of Emergency in Lesotho “caused by floods due to rainfall which threatens the livelihood of the people of Lesotho and the infrastructure, agricultural production, food security and environment in Lesotho.
” Strangely the notice concludes by saying the declaration shall be deemed to have come into effect from the 15 February to the 16 August 2022.
This was interpreted by many people as a prelude to seeking the recall of parliament under section 84(2) of the constitution of Lesotho. That section provides for recall of parliament either when Lesotho is at war or there is a
State of Emergency in Lesotho. It would have been interesting for parliament to be recalled under the pretext of an emergency caused by floods but to then proceed to deal with constitutional amendments instead of addressing the cause for its recall.
Between February 2022 and when parliament got prorogued, it had ample time to debate the issue of the consequences of “emergency caused by the floods” and that cannot now be raised as an emergency issue on the basis of which parliament should be recalled to deal with the same subject.
The passing of the 11th Amendment to the constitution does not merit the recall of parliament under emergency provisions of the constitution, and here are the reasons for saying so:
An emergency is something actual or imminent, something exceptional and threatens the life of the nation. It is our considered view that the amendment of the constitution under façade of state of emergency fits none of the aforesaid qualities of an emergency situation.
It has always been known from the inception of the 10th parliament five years ago that its life was due to expire on the 13 of July 2022. That placed a duty of everyone who was working on the 11th amendment of the constitution to have ensured that they concluded their business well ahead of the constitutionally decreed time for dissolution of parliament.
Unfortunately the bodies entrusted with that task, namely the National Reforms Authority, the National Assembly and the Senate went about the business very leisurely and as if dissolution was not even eminent.
Perhaps people knew that they could rely on a spurious invocation of a state of emergency to seek the recall of parliament. The constitution is a sacred instrument whose provisions, especially such important provisions pertaining to a state of emergency should not be lightly resorted to.
Lesotho has a sad history with the abuse of the emergency provisions of the constitution. i. e. Section 21 of the Independence constitution was invoked on the 30 January 1970 to proclaim a completely unmerited state of emergency that unleashed a reign of terror and dictatorship in this country for years to come.
It is against this background that we voice our strongest objection to the recall of parliament to transact business which does not qualify as business to be transacted under emergency provisions of the constitution.
The exercise of public power must be informed by the constitution, legality and the rule of law. Adherence to the constitution is not optional but its provisions binds and must be respected by all it governs. It will be remiss and unconstitutional to invoke state of emergency provisions to pass 11th amendment to the constitution.
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