lesothoanalysis

Overview

When SADC completed its Observer Mission in Lesotho in April 2015, it made a number of comments on Lesotho’s some of the sources of Lesotho’s instability. The Mission later wrote a number of observations and recommendations on the way forward. The recommendations contained in the “Proposal on Constitutional and Institutional Review for the Kingdom of Lesotho” prepared by the SADC Observer Mission to the Kingdom of Lesotho (SOMILES) headed by Cyril Ramaphosa, Deputy President of South Africa have not been widely discussed. The report compiled by a Team of political and security personnel identified key issues contributing to the instability environment in Lesotho.

The substantive issues in the report are not a subject of this piece. Briefly, the substantive issues in the Report, talk to issues about the constitution on how power has to be exercised and by whom. It also observes that security and public sector reforms are imperative if Lesotho is to move away from its perennial instability.

The focus here is the how question which seems to be the neglected part of this debate by most of those who have commented on the Report. It is obvious to me that important though the substantive issues may be, the process is even more important. When one travels to some place, they must chart the route lest they fall into the cliffs because of the one sided focus on the end of the journey. The SOMILES proposals themselves hardly touch on this crucial issue. In the only paragraph where it touches on the process, it correctly articulates the fact that credibility of any constitutional reforms is dependent on citizens’ participation.  The report observes:

Any constitutional review process needs to be embarked on through a process that will be seen to be legitimate and credible by the populace. It has become a generally accepted practice worldwide in constitution making processes that such projects must include an interactive platform between the government and its nationals. It also functions as an empowerment process where the government gives its people the right to decision making. Constitutional review is no ordinary law-making process and often requires the adoption of extraordinary processes.

Regrettably it goes no further. Brief though this is, it is suggestive that constitutional reform is not and cannot be unilateral. In Lesotho this is even more important because of the sheer numbers held by the opposition in parliament. But even more importantly, a glance at the actual votes cast for four of the members of the present coalition government who became entitled to a ministerial position by virtue of the coalition agreement indicates that unilateral action would not be credible. Only National Independence Party (NIP), actually qualified to get a seat in parliament. While the quota for a seat was 4,600 votes, those political parties scored far below that with the Lesotho Peoples’ Congress (LPC) scoring less than 2,000 votes. This is largely a result of the constitutional deficiency in Lesotho which fixes parliamentary seats at 120, with no overhang as in Germany and New Zealand where the Mixed Member Proportional (MMP) model was borrowed from. The table below shows the electoral performance of the political parties in the 2015 National Assembly Elections.

Table source: http://www.electionpassport.com/files/LS/LS.xlsx

With the seats as they are, no political party can envisage going it alone even if it wanted. Constitutional changes, require in most cases two-thirds majority in parliament to pass. Section 85 of the Constitution specifies the procedure for any changes to the Constitution. Some sections are entrenched while others are double entrenched, meaning that the absolute concurrence of both the National Assembly and the Senate and in some areas a referendum are a requirement. It is clear therefore that when the government makes declarations that constitutional and institutional reforms are being worked upon and will be presented to the forthcoming SADC Summit in Swaziland in August 2016, it is a clear deception. Government’s actions are a movement to nowhere. Constitutional reform requires inclusivity to be sustainable.

Why Constitutional Review?

The decision by SADC that Lesotho should proceed to undertake reforms were informed by the never-ending crisis which has pre-occupied the regional body for more than two decades. In most of those periods, SADC intervention was akin to a fire brigade, only putting out the fire, but not cleaning the surroundings so that it does not have to rush back. After eight months of providing the Prime Minister with a security detail, and other tasks, it was clear that fundamental changes are needed to minimize the instability. This was an attempt to ensure that a severely divided country can be reconciled. That is why the decision was that the reforms be undertaken with the support of SADC. The point is that the reforms we hear about are not a result of domestic consensus, but are largely foreign driven. Whether foreign driven or not, consensus building is imperative if such reforms are to be sustainable.

It stands to reason that for the reforms to succeed, there is a need to address a question of a divided country with a patchwork of a government with a racer thin majority in parliament. The fact that all opposition political leaders in parliament are in exile, indicates that the reforms are essentially doomed. Constitutional and institutional reforms require to be preceded by consensus building amongst the political class. It requires that those in government and those outside feel secure enough to be able to look beyond now, otherwise the next government would almost certainly change the constitution and other laws which were imposed.

It is clear that constitutional changes are also a social engineering project to minimize conflict and to bring about stability in the political process. For constitutional review to take place, the playing fields must be level. An attempt to pre-empt reforms by filling positions in the public service with one’s surrogates with underwhelming skills is not a useful strategy. Since the reason for review is to stabilize the system inclusivity must be the only way out. This means that the ultimate end of the process may include relooking not only the structures but searching for qualified personnel who would be able to professionally run such structures. It is therefore futile to pack loyalists in positions prior to reforms. When reforms take place, they necessarily have to end up with ensuring that people are recruited into the new reformed structures rather than reforming with existing staff. Indeed this was one of the recommendations of Dr Prasad who wrote the Report after the New Zealand trip by Lesotho politicians and senior government officials before the 2015 elections. He advised that no senior positions should not be filled until the reform process was completed. Beware!

 Reform Process

On the basis of the nature of the recommended reforms, it is clear that at least three stages should be agreed upon by all political stakeholders. Borrowing from the Zambian experience, the first stage must be to set up a Technical Committee of Experts on the Constitution to scrutinise both the Prasad Report and the SOMILES Report. This group should then consolidate and submit their report for discussion at local levels, constituency levels and lastly at the national level. The thing which is critical here is that the constitutional proposals must not be the monopoly of the national political elite, but must be able to garner the support of the broadest section of the people.

The second stage, of the discussions should be the convening of a national convention. This is the stage where the final political consensus of all political parties, academics, traditional leadership, civil society organizations and others will be sought. What is critical here is that a national conference like that should be the main body that will shape the constitutional and institutional reforms. It would be untenable to have major changes in the constitution to be made a small group of bureaucrats and politicians without broader civil society engagement and blessing. A major project like constitution making cannot be done behind closed doors if it is to be broadly acceptable to the majority of the people.

The third stage of this process would be a formal passing of the reforms by parliament without changes. When parliament meets for an exercise like this it will have got a consensus of the populace in a national conference. It will in such cases, be a formality. It is necessary to avoid the pitfalls which took place earlier where after the IPA had decided on constitutional issues, parliament changed some of them. In essence, the national conference should, for this purpose be the place where the national will would be rather than feuding politicians.

The substantive issues about the Prasad and SOMILES proposals will be handled in two weeks’ time.