On November 12, 2022, the Lesotho Court of Appeal upheld a decision of the High Court (sitting as the Constitutional Court) issued on September 12, 2022, that found the state of emergency declared by the government in August 2022 unconstitutional. The government had declared the state of emergency in order to reconvene the 10th Parliament, which had been dissolved in July 2022. The government argued that the king’s dissolution of Parliament at the end of its full, five-year term without its passing two bills pending at the time constituted an emergency under section 23 of the country’s constitution.
Background to the Case
The decision stems from two cases brought before the High Court that the court consolidated, noting that both involved the same cause of action “impugning the Prime Minister’s declaration of a state of emergency.” On July 14, 2022, the king of Lesotho, Letsie III, dissolved Parliament as required by the constitution after a full term of five years. On August 16, the then prime minister, Moeketsi Major, declared a state of emergency through August 29, 2022, to reconvene Parliament to pass two reform bills, the Eleventh Amendment to the Constitution Bill 2022 and the National Assembly Electoral Amendment Bill, 2022. In the emergency declaration notice, the prime minister noted that the “failure to pass the bills constitute[d a] public emergency.” Following the declaration of the state of emergency, the king reconvened Parliament for a week so that it could debate and pass the bills.
Section 23(1) of the Lesotho Constitution, which formed the basis for the declaration, states that “[i]n time of war or other public emergency which threatens the life of the nation, the Prime Minister may, acting in accordance with the advice of the Council of State, by proclamation which shall be published in the Gazette, declare that a state of emergency exists.” Section 84(1) of the constitution allows the government to reconvene a dissolved Parliament during a state of emergency, stating:
If, after a dissolution of Parliament and before the holding of a general election of members of the National Assembly, the King is advised by the Council of State that, owing to a state of war or of a state of emergency in Lesotho, it is necessary to recall Parliament, the King shall recall the Parliament that has been dissolved and that Parliament shall be deemed to be the Parliament for the time being (and the members of the dissolved Parliament shall be deemed to be the members of the recalled Parliament), but the general election of members of the National Assembly shall proceed and the recalled Parliament shall, if not sooner dissolved, stand dissolved on the day immediately preceding the day fixed for such general election or, if more than one such day, the first of such days.
Two parties separately challenged the constitutionality of the declaration of the state of emergency and the actions that were born from it: the recall of Parliament and the adoption of the two bills. Specifically, the applicants asked the court to void the declaration of the state of emergency, to declare the recall of parliament unconstitutional and bar Parliament from convening, and to declare any business that Parliament concluded during the recall period null and void. The High Court consolidated the cases and issued its decision in September.
On the legality of the declaration of emergency, the court sided with the applicants in finding it unconstitutional, noting that it lacked sufficient, objective justification. The court stated that, when declaring a state of emergency, the government had the burden to justify the validity of the declaration “not on the basis of subjective views, opinions or perceptions but objectively with reference to objective conditions of a public emergency as defined in section 23 (1) of the Constitution.” The court found that government’s reasoning for the declaration was nothing more than an attempt to fix perennial political problems that have persisted since the country’s founding. The court noted that
[n]otwithstanding the political crises and instabilities, this Nation has gone on with its life. Institutions may have been shaken but certainly not collapsed. It is, therefore, a long shot for the respondents to assert that the failure by Parliament to pass the two Bills constitutes a public emergency. There is no demonstrable actual and imminent danger to the life of this Nation posed by the failure of Parliament to pass the two Bills before its dissolution on 14 June. The Declaration comes two months after the dissolution of Parliament. Apart from rising levels of crime, which is a law and order challenge that the recitals ascribe to killings caused by political factions, the business of governance is fairly smooth. The applicants are right in their contention that Parliament was simply beaten to time. This could have been avoided if Parliament had prioritised the passing of the Bills over other legislative business.
The court further noted that “[i]t is in the nature of the democracy that Parliament passes some bills and fails to do so with others. This does not portend an emergency at all, irrespective of the expectations by powerful interests in a bill. The disappointment when a bill of popular interest fails to be passed into a law cannot be equated to an imminent and actual threat to the life of the Nation.” The court then held the declaration of the state of emergency null and void for failure to meet the constitutional threshold under section 23(1).
In addition, the court found that the king lacked constitutional authority to recall a dissolved parliament to transact regular business. With regard to the role of the king to recall Parliament after the declaration of a state of emergency, the court noted that “His Majesty can recall Parliament to meet for the purpose of transacting only the business of debating and voting upon resolutions to approve the declaration of the state of emergency. A harmonious interpretation of sections 23 (8) and 84 (2) is that the mandate of a recalled Parliament is only to debate and pass resolutions approving the Declaration and not to exercise section 78 powers to make laws.”
Finally, the court found that the recalled Parliament has no constitutional authority to debate and adopt bills. It noted a dissolution of Parliament “terminates 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.” It held that the recalled Parliament has no constitutional right to debate and adopt bills.
Hanibal Goitom, Law Library of Congress
December 28, 2022
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