When Lesotho’s Prime Minister Thomas Thabane wrote to King Letsie III on March 20, explaining why he wanted parliament to be suspended, he said it was a necessary part of the fight against the coronavirus.
He cited the World Health Organisation which advises against large gatherings to help avoid spread of the virus.
Thabane, 80, gave the King a deadline to signal his approval of the move by signing the document suspending parliament. When no royal signature was forthcoming, Thabane signed the suspension himself.
Now that solitary signature is one of the issues that the country’s constitutional court has been asked to consider in the light of a challenge to the legitimacy of the prorogation.
The suspension is due to last from March 20 to June 19, a full three months, and was announced just days after the government declared a state of emergency to manage the threat of Covid-19. Among other measures, the emergency has seen restrictions on people entering and leaving the country as well as closing of schools.
Parliament’s suspension took place against the backdrop of intense horse-trading, with parties and individuals jostling for a piece of the new power arrangement that will follow Thabane’s promised exit from office in June. He undertook to stand down after an implosion in his party left him exposed. This was followed by the scandal of his alleged involvement in the murder of his previous wife. Both Thabane and his present wife are said by the police to be complicit in her killing.
Thabane’s lawyers have argued that he has immunity from prosecution, but if he steps down in June as he has promised, the situation could change significantly.
Meanwhile, Thabane’s prorogation of parliament has come under close scrutiny by three judges of the country’s constitutional court. Among the challenges to his decision to suspend parliament is a claim that he is unfit for office, and that the real reason behind the prorogation is not the coronavirus. Instead, his opponents claim, it is his desire to paralyse parliament and stifle developments there – including an ongoing fight over his successor – before he quits office.
Several groupings opposed to Thabane coalesced behind the challenge to his suspension of parliament.
The matter was argued before cameras and microphones of the country’s national broadcaster for the first time – given emergency restrictions, there was no access to the court for the public. This meant anyone could have heard the judges giving advocate Motiea Teele KC due respect for much of his argument, but rather more of a rough time over two questions: Why was a suspension of three months needed, when other lockdowns were a mere three weeks? And was there any other democratic country in the world that had found it necessary to force parliament to stop work because of the virus?
Judge Sakoane Sakoane said the court would apply its mind to the real danger posed by the coronavirus. As Teele had argued, the judges would take into account that they were dealing with ‘a monstrous disease’ that could cause severe problems for Lesotho. But, added the judge, while the virus is a threat to society, had any other state prorogued parliament in response? Had parliament anywhere else been confronted with suspension as an accomplished fact, something non-negotiable that was forced on an unwilling legislature?
Teele responded that he ‘hadn’t looked around’ to find out, but would do so.
The two counsel who argued for the suspension to be set aside, were given a tough time about their submissions, particularly the claim that the prime minister was not fit for office. This was surely a question for parliament to decide rather than the courts, suggested Judge Sakoane.
Judgment was reserved and is expected to be delivered on April 17.
Court cases involving political parties and their members have become commonplace in Lesotho and it was the live broadcasting of the event on radio and television that seemed to catch public attention, with lively online comment about argument and submissions.
While the public gallery in the court was obviously empty, apart from a single journalist, there were three judges hearing the matter, and a full legal team on both sides of the question.
It was particularly clear that social distancing is not easy to maintain in court: counsel was seen on several occasions behaving in a way that is perfectly normal in non-coronavirus times, turning round from the lectern and leaning down to have close, whispered discussions with the rest of the legal team. All at less than arm’s length – and without masks.