We call on the Honourable Minister to advise cabinet to discontinue the current restrictions with immediate effect because in their current form, the regulations are unconstitutional. Even during a global pandemic, the Constitution still applies and it is important that government must follow it.
By Kananelo Boloetse and Motsamai Mokotjo
Dear Honourable Minister Semano Sekatle, Please accept our regards on behalf of all young people across the beautiful Mountain Kingdom.
We are a pair of concerned, passionate, active young members of the society – the so-called leaders of tomorrow – but we believe that we are leaders that our country needs here and now.
We are fresh, open minds needed to challenge the many challenges that Lesotho is facing.
We have discovered that the Public Health (COVID-19) (Risk Determination and Mitigation Measures) regulations, of 2021 which government put in place to minimize spread of the coronavirus by limiting people’s movements among others, may have been promulgated in a manner that is inconsistent with the Constitution, and they may not enjoy legal validity.
This means it is almost impossible for government to enforce these regulations as they cannot stand the test of law. Suspected offenders can easily challenge their legality to escape punishment.
Maybe this explains why no one has never been, arrested and prosecuted successfully for violating these regulations. Instead of being taken to court, suspected offenders are usually assaulted and harassed by police.
The regulations were made by the previous Minister of Health, Mr Motlatsi Maqelepo.
In so doing, the Honourable Minister exercised delegated legislative authority granted to him by the Public Health Order of 1970 under sections 16, 17, 18, 38 and 43, to make regulations whenever Lesotho or part thereof appears to be threatened by any communicable disease.
When making the regulations, Honourable Maqelepo falsely and misleadingly claimed that he was doing so in respect of the disaster-induced state of emergency declared by the Right Honourable the Prime Minister under sections 3 and 15 of the Disaster Management Act of 1997, against COVID-19 pandemic.
However, we have found that no section of the Disaster Management Act gives Prime Minister power to declare a state of emergency, and therefore, no State of Emergency has been declared in response to the coronavirus pandemic.
State of Emergency has its legal authority in section 23 of the constitution.
Section 15(b) of the Disaster Management Act only gives board of the Disaster Management Authority (DMA) power to advise Prime Minister, through the Minister responsible for DMA, on the requirements for and the timing of “a declaration of a disaster-induced emergency in accordance with the constitution”.
We have been advised that the claim by Honourable Maqelepo that Prime Minister declared a disaster-induced state of emergency under sections 3 and 15 of the Disaster Management Act is incorrect and misleading.
The Act, under section 3, gives Prime Minister power to declare a State of Disaster, a completely different concept which does not even have a specific section in the constitution.
Prime Minister declares that State of Disaster exists in any area when it appears to him, on the advice of the DMA Board, that any disaster in such area, is of such nature and extent that exceptional measures are necessary to assist and protect the public of that area or that circumstances are likely to arise making such measures necessary.
A declaration of State of Disaster is published in the gazette and remains in force for a specified period as set out in the declaration and can be extended accordingly.
We have found that there is no declaration of State of Disaster against Covid-19 pandemic that is still in force.
We want to admit that our finding might be wrong, that is why we are asking the Honourable Minister to direct us to a valid legal notice declaring state of disaster against Covid-19.
We would also like if the Minister can tell us the date on which the declaration was made.
We have also found that there is no disaster-induced state of emergency, declared in accordance with section 23 of the Constitution, that is in force as claimed by the former Minister of Health when he made the public health regulations of 2021.
If our finding is wrong, we humbly ask the Honourable Minister to direct us to a valid proclamation which declares that disaster-induced state of emergency exists in Lesotho.
We would also like to find out from the Honourable Minister if such proclamation, if it exists, was approved by parliament in line with section 23 of the Constitution.
If valid declarations of state of disaster and state of emergency do not exist, we will have no option but to go to the Constitutional court to seek an order declaring that Public Health (COVID-19) (Risk Determination and Mitigation Measures) regulations of 2021 are unconstitutional and invalid.
We, however, do not know if we have locus standi to bring this case before the Constitutional Court and do not have money to consult lawyers to establish if we have a right to do so.
The only option we have, to ensure that we have locus standi, is to go to Maseru central police station to certify our certificates and educational transcripts without wearing masks so that we can be arrested and charged with violating public health regulations.
That way we will have a right to challenge their constitutionality and legality.
Winning this case will open floodgates to large number of claims for damages and lawsuits against government from claimants who lost profits when government used these regulations to shut down their businesses.
Alternatively, we call on the Honourable Minister to advise cabinet to discontinue the current restrictions with immediate effect because in their current form, the regulations are unconstitutional.
Even during a global pandemic, the Constitution still applies and it is important that government must follow it.
If government would consider imposing restrictions in future, we advise that it should make sure that its restrictions are proportionate, and rooted in law.
We expect the minister to respond to this letter on or before Thursday, 25 February 2021. NW
Cc: Prime Minister Dr Moektsi Majoro
Speaker of the National Assembly Mr Sephiri Motanyane
President of Senate Ms Mamonaheng Mokitimi
Minister of Law and Justice Professor Nqosa Mahao
Attorney General Advocate Haae Phoofolo (KC)
CEO of NACOSEC Dr ‘Malitaba Litaba