The State of Lesotho's Constitutional Reforms: Progress or Stagnation?

Since 2012, Lesotho has been pursuing constitutional reforms to address recurring political instability. Despite significant domestic and international support, progress has been elusive. The dissolution of the National Reforms Authority in 2022 and subsequent rushed attempts to pass constitutional amendments highlighted procedural hurdles, while substantive disagreements also persist. The current government proposes splitting the reform bill, the Tenth Amendment to the Constitution Bill, into three separate bills to overcome procedural hurdles. While splitting the Bill into three sets may appear convenient in the interim, piecemeal amendments may have long-term negative implications on the constitution’s ‘basic structure’. It is instead ideal for the country to consider making a new constitution and submitting it to the referendum as the highest amendment standard provided by section 85 of the Constitution - writes Professor Hoolo ‘Nyane

Introduction

Since 2012, when the country entered a tumultuous era of coalition politics, Lesotho has been pursuing a major reform programme that seeks to fundamentally change critical aspects of the politico-legal system in the country: the judiciary, legislature, security sector, public service and the media, to mention just a few. This effort, which has both domestic and international support, seeks to address the cyclical political instability that has beleaguered the country. At the local level, there is much anticipation that the reforms will be the single most crucial intervention to stabilise the country, which has experienced flare ups of violent conflict over the previous decades. At the international level, there is a big push, and sometimes impatience, to see the country drop from the agenda of international organisations such as the Southern African Development Community (SADC), where it has eternally remained for all the wrong reasons. International organisations, such as the European Union and the United Nations Development Programme (UNDP), have provided technical and financial support, while countries like the United States and South Africa have demonstrated direct and substantial interest in the reforms. Despite local and international backing, the country has not made any headway. This article aims to analyse the current state of the reforms, the causes for the lack of progress and possible avenues out of this predicament.

A brief background to the reforms

The reforms in Lesotho have a chequered history. The current Constitution of Lesotho was adopted in 1993. Its primary defect as a Westminster prototype has always been the accumulation of power in the Prime Minister, with successive Prime Ministers abusing these powers to destabilise the country. The problems became more acute when the country started a turbulent era of coalition politics in 2012. It then became apparent that the Constitution was deficient in fundamental respects – insufficient checks on the powers of the Prime Minister, compromised independence of the judiciary, skewed civil-military relations, lack of professionalism of the civil service and the incapacity of parliament to hold the executive accountable. The climax of these underlying constitutional deficiencies occurred in 2014-2015 under then-Prime Minister Thomas Thabane, who capriciously changed the judiciary leaders (Chief Justice and President of the Court of Appeal) and the leaders of security agencies, arbitrarily prorogued parliament, and reshuffled the entire senior cadre of the civil service. This sweeping disruption led to the government’s collapse in 2015, hardly three years into office.

Starting with Thabane’s government, all governments in Lesotho have tagged reforms as their priority, yet no government has made a breakthrough on the programme. In 2018, a defining moment occurred when a much more consultative approach was adopted through enacting the National Reforms Dialogue Act of 2018, leading to the establishment of the National Leaders' Forum (NLF) and the National Dialogue Planning Committee (NDPC) to organise a national dialogue on the content and process of the reforms. The National Dialogue was convened in 2019, which resulted in the formation of the National Reforms Authority (NRA), a 35-member multi-stakeholder body including representation of political parties and civil society organizations. Despite drafting several important constitutional amendments, the NRA was disbanded in 2022 after exceeding its statutory lifespan. The government’s assumption of reform responsibilities post the NRA disbandment spelt further complications for the reforms programme.

The present state of the reforms: dilemmas and alternative avenues

After the catastrophic decision to dissolve the NRA, the government took over the reforms a few months before the scheduled 2022 elections. Although the NRA had produced some important drafts, the body had not yet completed its work when its time lapsed, and it unsuccessfully challenged its disbandment in the courts of law. Due to the time pressure and international impatience with the country's failure to complete the reforms, the government hurriedly and clumsily put together the drafts from the NRA into the Tenth Amendment to the Constitution Bill, colloquially known as the “Omnibus Bill”. Since the drafts from the NRA were not yet complete, the government, without much consultation and proper draftsmanship, completed the drafts to present to parliament for enactment. The government ran the Bill through both chambers of parliament without regard for the constitutional voting thresholds required for altering different clauses of the Constitution. However, when parliament was dissolved at midnight on 13 July 2022 after the completion of its five-year term, it had not yet finished enacting the Tenth Amendment to the Constitution Bill. The much-anticipated reforms bill was then aborted. The Prime Minister, perhaps out of embarrassment, labelled the failure ‘a state of emergency’ so that parliament could be recalled from dissolution to pass the Bill. Parliament was indeed recalled from dissolution under the flawed constitutional pretext that the failure to pass the reforms bill was an emergency. The recalled parliament purportedly passed the Tenth Amendment to the Constitution Bill and other laws such as the National Assembly Electoral (Amendment) Bill 2022. The recall of parliament was successfully challenged in the High Court, which noted that the failure of the tenth parliament to pass the two bills was not a public emergency ‘that threatens the life of the nation’, as provided for in the Constitution. The Court of Appeal confirmed the judgment of the High Court, with the net effect being that the 2022 elections were held under the old dispensation.

Procedurally, the main predicament is deciding whether to form a multi-stakeholder body to drive the programme forward, or to lead the reforms itself.

When the new government came into office after the October 2022 elections, the long-drawn-out spectre of reforms was the first item on its agenda. The new parliament is still hung: no party with an outright majority. However, the Revolution for Prosperity (RFP), the party led by business mogul Sam Matekane, has the largest majority. Hence Matekane is a Prime Minister in a coalition government. The new government remains committed to the reform programme, but the dilemma that confronts the new government is both procedural and substantive. Procedurally, the main predicament is deciding whether to form a multi-stakeholder body to drive the programme forward, or to lead the reforms itself. Complicating matters, the courts unanimously nullified the Tenth Amendment in 2022 as the parliament did not abide by differing amendment procedure stipulated in section 85 of the Constitution for various types of constitutional amendment bills: amendment by ordinary majority, amendment by a special majority (two-thirds) and amendment by a referendum.

Similar procedural challenges are currently confronting the new government. While the government says it is still consulting political stakeholders about the next steps, there is a concerning inclination towards the government leading the reforms without needing a multi-stakeholder body akin to the defunct NRA. This is risky. One of the reasons that reforms have failed in Lesotho is that successive governments, including Prime Minister Majoro's government of 2020-2022, thought they could unilaterally implement reforms. Such an approach – where government unilaterally drives the reforms – will result in an outcome that lacks legitimacy and will likely encounter immense opposition. The heated disagreement between the government and the opposition over the reforms presently is  testament to the contention that, at least in the current context and climate, the government is not a good leader of such a sensitive project that is of national rather than partisan importance.

Furthermore, the government is considering dividing the reforms into three sets – ordinary, special and referendum-bound amendments – in an attempt to comply with the amendment clause of the Constitution. This strategy aims to avoid the pitfalls that the previous government encountered. While this approach may sound appealing and convenient in the interim, it could have ruinous long-term ramifications on the fundamental structure of the Constitution. This is the first time that Lesotho has contemplated thoroughgoing changes to the Constitution, and the proposed amendments seek to make fundamental changes to the basic structure of the Constitution. As reflected during the National Dialogue, changing the Constitution’s basic structure is only possible through the formulation of a new constitution, requiring a referendum to pass. Hence, the correct process must be safeguarded rather than endanger the Constitution's basic structure through piecemeal amendments.

The problems of these reforms extend beyond procedural issues. There are still some deep-seated substantive disagreements over a wide range of subjects . . .

The problems of these reforms extend beyond procedural issues. There are still some deep-seated substantive disagreements over a wide range of subjects: judiciary (structure and appointment of judicial officers), decentralisation (structure and powers of subnational authorities), public service (structure and appointments), security agencies (powers, processes and appointment), parliament (powers and processes) to mention but just a few. These matters need technical and political resolution before the Tenth Amendment Bill can be brought before parliament. Hence, the haste to reintroduce the aborted Tenth Amendment Bill as it is, whether as a single amendment or broken down into three sets as the government contemplates, will be counterproductive. The country needs to finish the uncompleted work started under the auspices of the defunct NRA, produce a new constitution and submit that draft constitution to the vote of electors through a referendum.

Conclusion

The persistent risks that have consistently threatened the reforms are still present. The temptation by governments to unilaterally implement the reforms continues to be a ubiquitous and intractable problem, with an enduring propensity to undermine the importance of process in the reforms. The process has two aspects: the need for a cross-section of stakeholders to agree on the process and the need to respect the amendment procedure as it currently stands under the Constitution. The temptation to break the amendments into three sets appears convenient, but it is a lazy option to ease international and national pressure. It might be fast and convenient in the interim, but it will have long-term harmful effects on the basic structure of the Constitution. While the reforms are long overdue in Lesotho, thoughtless haste may also be risky. The government and stakeholders in Lesotho must be patient to iron out these outstanding process-related and substantive issues. In the end, the country might have to consider avoiding the piecemeal approach and engage in a process to elaborate a new constitution, subjecting it to the highest standard provided in the Constitution: the referendum.

Hoolo ‘Nyane is an Associate Professor of Constitutional Law and Head of the Department of Public and Environmental Law at the University of Limpopo.

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Suggested citation: Hoolo ‘Nyane, ‘The State of Lesotho's Constitutional Reforms: Progress or Stagnation?’, ConstitutionNet, International IDEA, 29 June 2023, https://constitutionnet.org/news/state-lesothos-constitutional-reforms-progress-or-stagnation

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