Mosisili�s scramble to retain power: Lesotho�s constitutional crisis
Correspondent | Friday March 10, 2017 15:11
For those outside Lesotho, the question has always been why so much happens in this small impoverished country unlike in the rest of the Southern African region? I have been trying to answer that question in the 12 months since the launch of lesothoanalysis.wordpress.com.
At the heart of the problem in Lesotho has always been Governments which are not focused on answering the needs of the people, but pandering to the needs of a small clique of politicians allied or subservient to the military. It has been a case where politicians plot, murder and steal public resources without fear of consequences as a result of their alliance with some elements in the military.
The use of force against political opponents has always been the number one political strategy for those who want to cling to power. Use and connivance with rogue elements within the military have necessarily been key to their mutual survival.
The clearest example is where military command and politicians connived and executed a plan to kill Lt. General Mahao; kill Sub-Inspector Ramahloko; attempt to kill several guards of the former Prime Minister; and detain tens of soldiers for up to two years. Refusal to implement SADC decisions on suspending those soldiers suspected of committing these crimes and others is a result of this mutuality of interests in crime by Government and the military. One cannot survive without the other.
Both live in a bubble of impunity. If SADC was a body which acted on principle and knowledge rather than collegiality, it would have seen through that very early when the Phumaphi Commission was set up. Reluctance to implement decisions would have been understood clearly that those who commission crimes cannot be easily separated from those who commit them.
Recent developments in Lesotho have now taken a turn where the populace have rejected impunity by those who rule them. Indeed, in their numbers, they have begun to reject those in Government who stood with criminals and wish to protect them under a General Amnesty for crimes committed from 2007.
The only qualification for such an amnesty being granted was being a soldier, a policeman, member of the correctional services or any individual who committed crimes on his frolic with the intention of protecting the Government.
In their numbers, the people have shown through rallies and also in their influence to their Members of Parliament (MPs) to get rid of the present Government.
That was done through a vote of no confidence in Parliament on March 1, 2017. Having been defeated resoundingly, Mosisili has been scrambling since then to survive his rejection by Parliament. Unlike in all other Westminster systems of Government where losing a vote of no confidence automatically leads to the resignation of the Prime Minister, Mosisili scrambled to hang on to power.
Dissolving Parliament was only one of the ways of working towards extending his hold on power for up to three months; and more critically to go to elections before security reforms so that the criminal element in the security forces can be unleashed on the people before, during and after the elections.
Vote of no confidence and
drift to constitutional crisis
A week or so before Parliament re-opened on February 2, 2017, after a long break, three newly-formed political parties informed the Speaker of the National Assembly that they request to have their members cross the floor when the Parliament re-opened.
The biggest of those crossing the floor was the Alliance of Democrats (AD) led by Mosisili’s former deputy in the Democratic Congress (DC), Monyane Moleleki. On opening day of Parliament,14 MPs moved from the DC to AD in the opposition benches.
One more MP left one of Mosisili’s coalition partners to move to the cross bench, while two others left the opposition side to the cross bench. Adding to Mosisili’s dilemma was the fact that nine MPs who had gone there on a party list and thus could not cross the floor, had already signed an agreement with the opposition to vote Mosisili out of office.
The combined numbers remaining with Mosisili after the floor crossing was 37 in the 120-member Parliament. However, on the date of the motion, the Government side relented and provided a meek resistance. The decision did not end up going beyond the voice stage without any need to divide on a one-by-one basis. It was still a humiliating defeat which Mosisili avoided by absenting himself from Parliament on that critical day. Humiliating or not, Mosisili did not stand still. He began to prepare how to extend his time in office one way or another.
First, he had over the past weeks been advocating a bizarre position that he would not resign if he lost a no confidence vote. He argued that he would advice the King to dissolve Parliament and have the country go to elections contrary to clear and unambiguous provisions of the Constitution that he should resign or make a recommendation to the King to dissolve Parliament.
The advice, as spelled out in my earlier post, is the responsibility of the Council of State (CoS). This stance, as will be shown later, was a drift to a Constitutional coup leading to a Constitutional crisis. It’s apparent that where a Constitution allocates certain responsibilities to one person or body, such activity cannot be undertaken by another willy-nilly. This is so with this matter.
Second, Mosisili sought and got legal opinion from the Attorney General (AG), which sought for all intents and purposes to rehash Mosisili’s understanding of the Constitution that his word is final with the King and the Council of State in no position to say anything.
It was clear for everyone to see that the AG’s view was not legal in any sense, but was a mere justification for staging a constitutional coup. It was selective and hardly dealt with the constitution as an organic document which has to be read in its totality rather than only the interesting sections which coincide with the likings of Mosisili.
Third, as the plot thickened, the deployment of police and army units around Maseru intensified. Indeed, MPs became so alarmed about the harassment they went through that they raised this matter with the Speaker. No satisfactory response came from her, but this was an early indicator that intimidation was on the cards should the need arise. This was not all.
The shrill statements by the police spokesman in the past few weeks warning the public for one reason or another was significant. What all this indicates is that Mosisili’s Government has been gearing for a showdown with the opposition. Winning in Parliament was only the beginning of the struggle.
He was prepared to use any means to defy those who thought that his diminished status and support was enough to shove him out of power. He was prepared to play it dirty and outside the law with the support of the army and police.
Mosisili’s Constitutional coup
Mosisili had vowed in several of his rallies throughout the country that he would not resign. As soon as he was booted out by Parliament, he went to the King to advice that it be dissolved. It is clear from all sources that the King attempted to resist the dissolution in view of the reading of the Constitution. Mosisili persisted and it seems he prevailed.
In the end, the CoS did not meet in spite of the fact that more than seven of its members had apparently sought a meeting to deliberate on that matter. In a widely available letter written by the King’s Senior Private Secretary, Monehela Posholi there are no Constitutional reasons offered for not holding a meeting of the CoS in terms of Section 95(8) of the Constitution.
The Section spells out that if one member plus seven others request the meeting, such a meeting will hold. Posholi merely offers platitudes and not the law. He writes that:
“His Majesty decided, in the interest of national unity and to avoid possible Constitutional crises, to accede to the advice of the Rt. Hon. The Prime Minister for the dissolution of Parliament in preparation for the holding of general elections.
On further reflection, His Majesty deemed it not prudent to convene a meeting of the CoS as you had requested.
“We sincerely hope that you will understand and appreciate the predicament that His Majesty faced.
What one deciphers from the above is that the CoS, which is the legal authority for advising His Majesty was sidelined for expediency and sentiments rather than for any legal reasons.
Again the purported reasons of preserving national unity and avoiding possible constitutional crisis, have achieved the opposite. The person who had no authority to advice the King did, and all that was to achieve a three months extension of Mosisili’s stay in power.
That Posholi uses words like “accede” and “predicament”is suggestive that this was Mosisili’s diktat rather than a constitutional action by the King.
More importantly, the decision was essentially self-defeating. Section 113 of the constitution spells out the role of Parliament in the appropriation and authorisation to spend money. If Parliament had begun the process of budgeting in terms of Section 112, but that process was not complete, the Minister of Finance is authorised to use funds not yet approved for the first quarter.
There are limits to this, but it is possible. In a case however, where Parliament had refused to consider the Budget as is the case now, Lesotho is facing a complete shutdown from April 1, 2017. There is no possibility of accessing money from the consolidated fund. How then can elections be held without money?
What we have in Lesotho now is a full-blown Constitutional crisis without solution since Parliament has been dissolved before Budgetary allocation. Government accounting under normal circumstances would be by way of issuing a warrant to Ministries.
But under these circumstances, anybody who issues such a warrant or uses any money from the consolidated fund would be making an appointment with prison. It is a deadlock and a Constitutional crisis. As long as we pretend that we are operating constitutionally, we now know that elections cannot be held, nor can there be any Government spending in April 2017.
Mosisili has thus launched the country in its worst Constitutional crisis. Let those in the Government, particularly Chief Accounting Officers note that they have been placed in a situation where they have either to watch from the sidelines when the shutdown begins or prepare to go to jail!
Conclusion
Lesotho has gone through tumult and has often been rescued by SADC. At times SADC’s actions have been puzzling and not helpful. At other times it has mistaken the trees for the forest. In many years of its intervention, it has tended to be on Mosisili’s side.
We have observed as it stood by now when Mosisili drives Lesotho to the ground. For once, SADC has not attempted to get involved as Basotho tackle Mosisili. If he succeeds to hold elections rather than surrender power after losing a vote of no confidence, we must all be aware that the elections before security reforms will not be free and fair.
Mosisili will once again go to power with tacit SADC support.Mosisili’s constitutional coup has now launched us in unchartered waters. The only victims of this coup will be those who have not made hay while the sun was shining. Mosisili and his Ministers will dip into their reserves while the rest of the people suffer.
*Mafa Sejanamane is a political science lecturer at the National University of Lesotho. He is also a political commentator. This article is reproduced with his explicit authority