State of emergency can't be used to resurrect legislative corpses - Lesotho's high court

Lesotho’s political leaders have been given a firm message by that country’s high court: don’t try to use state of emergency powers in a sleight of hand to pass legislation that wasn’t finalised during Parliament’s normal sessions.

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Few readers will have noticed that Lesotho’s Prime Minister Moeketsi Majoro declared a state of emergency last month.

It was an unusual declaration for several reasons, not least in that it recalled parliament, already dissolved in anticipation of elections next month; that the emergency was scheduled to last for just a few days – and that its chief function was to pass two Bills that parliament hadn’t finalised before its dissolution.

The emergency was gazetted on 16 August on the advice of the Council of State and was to have lasted from 16 to 29 August 2022.

Explicit

As part of this strategy, King Letsie III issued a royal ‘recall of parliament’ on August 23, calling parliament – which he had dissolved a month earlier – into existence again for the explicit purpose of enacting two pieces of legislation that weren’t passed during the normal life of parliament.

(The dissolution of parliament by the king in July was a constitutional obligation as its five-year term had ended, and the recall specified that the step was being taken ‘to overcome the public emergency’ identified by the prime minister.)

Substantial threat

What was the nature of this emergency? According to Majoro’s declaration, the current political climate in Lesotho posed ‘substantial threat’ to the country’s stability with the country continuing to experience political instability that had begun in the 1960s.

Various factors had been identified as permitting this instability, and reforms to deal with them were enshrined in two proposed pieces of legislation before the national assembly. These Bills had not been passed before parliament was dissolved.

Further, Lesotho relied heavily on international partners and donors some of whom linked their support to imminent reforms. Without the Bills having been passed, there was a threat of sanctions and loss of investment support.

Extreme peril

There was also concern about political instability that might follow the scheduled national elections in October. Parliament had 'failed on account of lapse of time' to pass the Bills and extraordinary measures were thus needed to prevent chaos caused by political instability.

Prevailing conditions were ‘of extreme peril’ to the safety of people and property and could escalate. Failure to pass the Bill thus ‘constituted public emergency’, said Majoro and, acting in accordance with the Council of State, he thus declared a state of emergency in Lesotho.

The prime minister’s strategy – invoking a state of emergency to allow for the passing of legislation that could have been dealt with during a normal session of parliament – was challenged by journalist Kananelo Boloetse and advocate Lintle Tuke.

Stagnation

They said the conditions cited by Majoro to justify the emergency did not present an imminent danger, and that it was hardly an emergency when a government Bill wasn’t passed. There was no calamity, as the constitution required for the declaration of emergency. Rather, the situation should be described as ‘a state of political stagnation, mismanagement or proper lack of governance.’

Was the failure to pass the two Bills a public emergency, one that threatened the life of the nation, asked the court.

To be classified as a public emergency, there had to be actual or imminent threat to the life of the nation. It had to affect the ‘whole nation’ and normal day to day life would have to be impossible. Further, the danger had to be exceptional, with normal measures to deal with it being ‘plainly inadequate’.

Essence

According to the prime minister’s declaration, the essence of the public emergency lay in the ‘failure by parliament to pass the Bills that are meant to provide a solution to problems mentioned’ by him in the official declaration.

By way of background, the court referred to Lesotho becoming a constitutional democracy in 1966, but that its first constitution was thrown out four years later, on the basis of a state of emergency declared by a prime minister about to lose power. From 1970 there was no constitution until the present constitution was adopted in 1993 and the country returned to democratic rule.

Since then, there had been moments of political crisis and convulsions of instability caused by a number of factors, and a national reforms authority (NRA) was formed to draft bills that would create a more stable situation in which these crises were minimised.

Journey

Despite these political instabilities, ‘this nation has gone on with its life,’ said the court. Institutions had not collapsed and it was a ‘long shot’ for government to claim that failure to pass the two Bills constituted a public emergency.

There was no demonstrable or imminent danger to the life of the nation caused by the failure to pass the two Bills. The business of governance ‘is fairly smooth’, said the court. Parliament simply ran out of time, something that could have been avoided given better time management and prioritising the two Bills of over business.

The government had essentially admitted that the national reform project was ‘a journey and not an event’, and it was in the national interest that its work should continue under the next administration.

Legislative fridge

If declaring an emergency did not permit the lawful recall of parliament, then was a dissolved parliament competent to pass the Bills?

The role of parliament under a valid state of emergency was to ‘debate and pass resolutions approving the emergency’, not to legislate, said the court.

Backing this view, the court said a dissolution of parliament terminated all pending bills. ‘It does not preserve them in a legislative fridge to be opened if parliament is recalled. A recalled parliament does not have jurisdiction and authority to resurrect business killed and buried by its dissolution.’

Corpses

Parliament’s failure to pass the two Bills at the time it was dissolved had the effect of ‘annulling and cancelling them for good.’

‘They became corpses which a declaration of … emergency cannot resurrect’.

As to the role of the King, ‘His Majesty has been ill-advised’, said the court.

The court concluded that failure to pass the two Bills did not meet the threshold for declaration of a public emergency. In this case, the court agreed with the applicants who said that the failure to pass the Bills was ‘symptomatic of malaise in governance and institutional weakness’.

Heavens

The heavens would not fall if approval of the two Bills was left to the next parliament, reconstituted after the elections.

It was in the nature of democracy that parliament passed some Bills and not others. This did not result in an emergency. ‘Disappointment when a bill of popular interest fails to be passed into law cannot be equated to an imminent and actual threat to the life of the nation.’

Those who vote against a Bill in the face of ‘huge public interest’ in its passing were carrying out a legitimate constitutional role and it could not be argued with ‘any measure of seriousness that by failing to pass a Bill, Parliament generates a public emergency.’

Slippery

If emergency power could be invoked for such tenuous reasons ‘the country is put on a slippery slope towards rule by states of emergency.’

The court described the result as a ‘victory for constitutionalism and the rule of law’. The applicants had taken up cudgels in defence of the constitution in the public interest’ and deserved to get their costs in this action.

  • The judgment was written by the chief justice, Sakoane Sakoane, with the unanimous agreement of judges Tseliso Monapathi and Mafelile Ralebese.
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