Lesotho’s Constitution Requires a New Prime Minister

30 May, 2012

Lesotho’s Prime Minister Pakalitha Mosisili has resigned. Although the exact circumstances leading to his resignation have not yet been disclosed, what is clear is that, even absent his resignation, Lesotho’s Constitution requires the appointment of a new prime minister.

In Lesotho’s recent elections Mosisili’s Democratic Congress (DC) obtained 48 of the 120 parliamentary seats.  Although this was the largest number of seats won by a single party, opposition parties have announced an intention to form a coalition government. The All Basotho Convention (ABC) won 30 seats and the Lesotho Congress for Democracy (LCD) won 26.  Smaller parties such as the Basotho National Party won 5 seats. A coalition as between even these three parties would entitle them to elect the new prime minister.

Following a general election, the prime minister is appointed by the King. In appointing the prime minister, he must act “in accordance with the advice of the Council of State” (s87(1)).

Legal authority maintains that this is a different procedure from being required to act after consultation, or in consultation, with the Council of State. If the former applied, the King would only be required to consult the Council, but (as long as he or she gives bona fide consideration to what is conveyed) the King would not be bound by the advice or recommendation. If the latter applied, there must be agreement between the King and the Council.

However the Lesotho Constitution confers weaker powers on the King than either of the above. The King’s agreement is not required. He is not even consulted (the deliberative power, i.e. the authority to decide, is vested wholly in the Council). The King must act as advised.

While the King is bound by the Constitution to appoint the Council’s nominee, the Council’s deliberative power is itself limited. Lesotho’s Constitution requires that the Council’s nominee be that person whom ”appears to the Council” to be ”the leader of the political party or coalition of political parties that will command the support of a majority of the members of the National Assembly”.

“Support of a majority of the members of the National Assembly” is the support of a (simple) majority of persons present and voting. In terms of Lesotho’s Constitution, this support would have to be apparent or “appear” to the Council in advance of an actual vote. Lawfulness requires that the Council’s view would have to both bona fide and reasonable: the Council would have to satisfy itself that such an outcome is likely. How it does so is for the Council to determine. Legal opinion advises that the simplest and surest way would perhaps be to require a written (in effect) petition to Council, signed by enough newly-elected members.

As regards the former requirement in s87(2), the qualifying phrase “that will command the support of a majority…” of course applies to both possible situations, that of a single ”political party” and of a ”coalition of political parties”.