Citing separation of powers, Lesotho court refuses to order that national assembly vote on no confidence debate by secret ballot

25 February 2022 · Carmel Rickard

Attempts by two MPs to bypass an investigation into possibly holding secret ballots in the Lesotho National Assembly have come unstuck: the High Court has rejected an application by the duo for the court to order that a no confidence ballot against the Prime Minister be held by secret ballot, saying this had to be decided by the assembly itself. The court also took the opportunity to restate the boundaries between the executive, legislature and judiciary, and to urge ‘political honesty’ from MPs, saying ‘political morality is the hygiene that is needed to embed and sustain citizens’ faith’ in Lesotho’s ‘young democracy’.

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Two members of Lesotho’s national assembly have brought a constitutional application to the high court, wanting the court to rule that a secret ballot could be used when a resolution of no confidence in the government is debated.

The two, Tefo Mapesela and Kose Makoa, introduced a no confidence motion in the assembly in August 2021, proposing the leader of the opposition, Monyane Moleleki, to replace the current prime minister, Moeketsi Majoro.

A few weeks later they introduced another motion asking the house to approve the use of a secret ballot when the no confidence debate was held.

Interdict

They had no success, because the Speaker ruled that the Standing Orders Committee had already been mandated to make a decision on the holding of secret ballots.

In response to that ruling, Mapesela and Makoa then approached the court for an order declaring that Lesotho’s constitution allowed a no confidence debate to be resolved by a secret ballot of assembly members.

Their multi-part draft order also aimed to interdict the assembly and its business committee from preparing to table their motion of no confidence, an application strongly opposed by the Speaker.

Reviewable

The three judges who had to decide the matter said it raised the fundamental question of whether the Speaker had a discretionary power to decide in favour of a secret ballot. If so, would refusal to allow a secret ballot be reviewable?

These were questions that involved the separation of power and the competence of the courts to review the internal proceedings of Parliament.

Both applicants said the right to a secret ballot came from the structure of the constitution. But, said the Chief Justice, Sakoane Sakoane, who wrote the unanimous judgment, ‘I do not discern any such right.’

Personal rights

He said the two applicants did not seem to understand that their rights to vote came from their constitutional status as representatives of the people. ‘Their status is of a representative nature and does not confer personal rights.’

The only reference to the right of a secret ballot was in the section of the constitution dealing with the right of the ‘general populace’ when voting in general national elections. ‘Nowhere else does the constitution expressly mention voting by secret ballot’, not even in the section that deals with voting in Parliament.

‘If the writers of the constitution had wanted to confer a right to a secret ballot in Parliament for members to pass a resolution of no confidence in the government, they [could] have easily done so.

Silence

‘Silence on this score means that voting by secret ballot in Parliament is not a constitutional right.’ Rather, it was a mechanism that the assembly could adopt, if it chose to do so.

The debate around whether or when to vote in secret had to be understood in the context of political parties that operated under the discipline of party whips.

A secret ballot would protect those from the governing party who might decide to vote with the opposition to support the no confidence motion.

‘Defies logic’

The House had already referred a motion on secret ballots to the Standing Orders Committee and that body had not yet reported back to the House.

‘Thus, adoption of a secret ballot procedure for purposes of voting on motions of no confidence is already on the agenda of the House and [is] being attended to by the standing orders committee.’

The two applicants were well aware of this, and it ‘defies logic and reason for them to table another motion raising the same issue’ instead of asking the standing orders committee to hurry up with its decision.

‘Unethical conduct’

The two applicants had accused the Prime Minister ‘of all manner of arrestable and prosecutable offences and unethical conduct.’ However, warned the CJ, ‘This court is not a forum for canvassing criminal culpability and unethical conduct by members.’

Allegations of this sort should be investigated by the committee that dealt with ethics and the code of conduct – not brought to court as part of an application for a secret ballot. The applicants could also take their allegations to the police. But these allegations were not a good reason for the court to intervene and ‘direct’ the assembly to ‘give effect to the desires of the applicants’.

There was no need for the two applicants to have rushed to court to interdict the various committees from making preparations for their motion of no confidence to be heard. ‘I do not see that [they] have any constitutional right to a secret ballot that is being threatened’.

Impermissible

The application was ‘a bare-faced request for the court to direct parliament how to run its internal business’ and what was sought was ‘constitutionally impermissible.’

The call for a secret ballot should itself be decided by majority vote and by open ballot, said the court.

Parliament had the constitutional power to adopt its own procedures and rules for the conduct of its business.

Immense

The speaker’s comment that a secret ballot had to be carefully thought though was important, given the right of the public to observe proceedings of the House. A secret ballot in motions of no confidence ‘would deprive the public’ from seeing how each MP voted on a matter ‘of immense national importance of toppling a sitting Prime Minister and possibly his Cabinet.’

‘A balance needs to be struck between protecting timid souls from the party Whips and revelation of their identities so that they can also be held accountable at the national polls.’

Members should vote ‘without fear of retaliatory action by the Executive’. MPs had ‘sacred’ responsibilities of effective, robust oversight, and had to reject fear of retaliation, loss of popularity and patronage. They should be less bothered about security, loss of popularity and patronage and be more concerned about ensuring effective delivery of services and good governance. ‘That is where lies their security and popularity,’ the court said.

Downfall

Those who were unhappy about the performance of a ruling party were free to leave it and thereafter bring about its downfall, the judges added. ‘This is in keeping with political honesty. Political morality is the hygiene that is needed to embed and sustain the citizens’ faith in our young democracy.’

‘A Matter of Justice’, Legalbrief, 22 February 2022

Carmel Rickard

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