August 01, 2022
In his latest ploy to hold onto the fort and whisk away the force of fire heading in his direction from the Prime-Minister Dr Moeketsi Majoro to remove him from the helm of the service, Commissioner of Police (COMPOL) Holomo Molibeli is looking to the Constitution for rebate.
Molibeli has filed a constitutional case against Majoro whom he brands as not a substantive office-bearer thus not having enough powers to carry-out such serious governance decisions as removing a seating police commissioner, inter alia.
In his founding affidavit before the Constitutional Court, Molibeli indicated that dissolution of the Tenth Parliament of the Kingdom of Lesotho on July 13, negated the Premierâ€™s any ambition of exercising executive powers particularly challenging the status quo.
He said the government automatically became a â€œcaretakerâ€ government which inevitably placed the Prime Minister to a position of â€œcaretakerâ€ Prime Minister until the elections have passed as dictated by the Constitution.
Molibeli was slapped with a letter on June 1, 2022 by the Prime Minister directing him to retire from the helm of the police service with inefficiency and ineffectiveness cited as the main reasons in terms of Section 5 (3).
This he said culminated into â€œâ€¦unheard of conduct by yourself whereby you are perpetually disregarding the Police Authority and this behaviour is rendering the LMPS inefficient and ineffective.â€
The matter ascended to the High Court where Molibeli sought intervention before filing an interlocutory application where he prayed that Vodacom Lesotho be directed to issue a record of conversations ensuing between the Premier and Minister of Police Lepota Sekola, the bone of contention he asserts was the matter of his removal. But that could not pay fruitfully as Compol lost the interlocutory matter.
And as the matter was about to proceed to the main case, another surprise emerged where Compol stated that the premierâ€™s powers are limited owing to the disbanding of Parliament as per Legal Notice No. 61 of 2022 released by King Letsie III on July 13.
â€œI have substantiated legal interest in not only ensuring that I am not removed from the office of the Commissioner of Police of the LMPS in an unlawful and unconstitutional manner but also that the 2nd Respondentâ€™s unconstitutional exercise of public power is not immunized from constitutional review.
â€œConsequently, I have the necessary locus standi under Section 2 of the Constitution to institute these constitutional review proceedings. I am advised that Section 2 of the Constitution is not only remedial but it is also a source of jurisdiction and liberal standing,â€ he said.
Section 2 of the Constitution talks to the Constitution being the supreme law of the Kingdom.
Reads Section 2: â€œThis Constitution is the supreme law of Lesotho and if any other law is inconsistent with this Constitution, that law shall, to the extent of the inconsistency, be voidâ€.
â€œSection 2 of the Constitution houses the fundamental values and principle of rule of law, accountability, responsiveness, openness, and places constitutional obligation on the Honourable Court to uphold constitutional integrity and the rule of law, and to ensure that public power (whether statutory or constitutional) is exercised on legal authorisation,â€ Molibeli said.
â€œI am advised and believe same to be true that when the Tenth Parliament of the Kingdom of Lesotho was dissolved on July 13, 2022, the government of the Kingdom of Lesotho assumed the â€œcaretakerâ€ constitutional status pursuant to section 83 (7) of the Constitution.
â€œI am further advised that with effect from July 14, 2022, the Prime Minister became a caretaker Prime Minister presiding over the caretaker government.
â€œWith effect from July, 14, 2022 and during the caretaker mode or status of the government of the Kingdom of Lesotho, the role and function of the caretaker Prime Minister is limited to maintaining the status quo existing before the dissolution of the 10th Parliament, pursuant to section 83 (7) of the Constitution,â€ he said.
He continued that consequently, the Caretaker Prime Minister during the caretaker period is constitutionally prohibited from, inter alia removing or effecting changes to key positions such as the Head of Securities, the judiciary and law enforcement agencies such as Lesotho Revenue Authority and Directorate on Corruption and Economic Offences (DCEO).
â€œI aver that the 9th Amendment to the Constitution Act which prohibit significant changes to key positions in the government was inspired not only by the need to express the constitutional convention to that effect but also to specifically deal with the specific incidents influenced by coalition politics since 2012 which are matters of common knowledge and which this Honourable Court is entitled to take judicial notice of.
â€œThe unconstitutional and illegal removal from office will cause irreparable harm not only to the integrity of the constitution, maintenance of the rule of law but will also effectuate constitutional injustice to me and trample upon and render illusory and worthless my non-material rights,â€ he said.