The changing nature of the power of prorogation of Parliament in Lesotho: from absolute prerogative to rationality?

Abstract

ABSTRACT The Constitution of Lesotho vests the power to prorogue parliament in the King. Like all executive powers, the power of prorogation is exercisable on the advice of the Prime Minister. In the past, this power was understood as an absolute prerogative that needed no justification, provided it was done in terms of the Constitution. Successive Prime Ministers in Lesotho have used prorogation as a potent political weapon to ward off any political turbulence in Parliament that posed an existential threat to their governments. These Prime Ministers operated under the long-held view that the power to prorogue Parliament is an absolute prerogative. There are clear indications that this orthodox view is rapidly changing. The recent decision of the Constitutional Court in All Basotho Convention v Prime Minister (2020) seems to be ushering in a new approach. In effect, the decision suggests that it is no longer enough that Parliament can be prorogued in terms of the express provisions of the Constitution; the exercise of such power must also be justifiable. This new approach seems to be in keeping with general trends in public law, namely, that the exercise of public power must not only be sourced in law, but must also be rational. The main question is whether prorogation has indeed drifted from being absolute to being exercisable based on rationality as an incident of the doctrine of legality. The purpose of this article is to investigate this question. Key words: Prorogation; prerogative; Constitution of Lesotho; justification; rationality; justiciability; legality.