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March 2017

The Swaziland SADC Summit and the Lesotho Crisis: can the diplomatic lethargy be broken?

Overview

For some of us, the January 2015 Gaborone SADC Summit seemed like the beginning of the new dawn in Southern African politics. It was a Summit where uncharacteristically, SADC forced the Lesotho government to accept its decisions emanating from the Phumaphi Commission of Inquiry and tasked it with implementation. It was a tough stance in view of the fundamental nature of those decisions on the continued survival of the seven party coalition government in Lesotho. Implementation of those decisions was bound to have a destabilising effect on the government for at least two reasons.

First, the insistence that Lt. General Kamoli, Commander of the Lesotho Defence Force (LDF) be relieved of his Command was fundamental. Kamoli was the clue that held together the civilian and military elements which had been involved in serious cases of High Treason, murder and others. The Phumaphi Commission listed all those who had avoided accountability for their crimes because of his protection. Like in mafia cases around the world, those who are under the protection of the mafia boss cannot be touched unless the boss is taken out. The boldness with which one Sechele, an LDF member, testifying before the Phumaphi Commission, made his stance known was a clear indication that he was himself well protected. Sechele dared the police to try to investigate crimes within LDF. He argued that, no member of the army would be handed over to the police during investigations. But more importantly, in its findings, the Commission found that:

139(q) That there are several investigations by LMPS on LDF members which were hindered by the Lt. General Kamoli by refusing to hand over suspects to the police. This disregard for the Rule of Law by the LDF, is evidenced by existing warrants of arrests (Annex) on some members of LDF including Lt. General Kamoli charged with High treason arising from the 30th August 2014 unrests.

Without removing the head of the network, both the civilian and military suspects would accordingly never account for their actions in a court of law. It is not surprising that shortly after Kamoli left, the regime floundered and was easily eased out. No one knows what would have happened to the opposition if Kamoli was still in total control of the army when they went for the vote of no confidence.

Second, the decision by SADC that all those in the army who are alleged, to have committed serious crimes listed by the Commission, be suspended while their cases are further investigated, touched on the core of impunity in Lesotho. An analysis of the warrants of arrest as shown in the Phumaphi Commission Report shows that a core existed in LDF who are invariably involved in most of those crimes shown. This meant that their suspension would at a go, remove the bulk of the team which was involved in several cases of murder; high treason; and use of bombs in an attempt to eliminate specified high profile personalities in the Lesotho government of the day. Recognition of the significance of this fact is that most of those suspects have now been promoted two times within one year in order to ensure that they are in control of all sectors of the LDF.

The obfuscation which the government attempted to do from January 2016 on the implementation of the SADC decisions on this was largely a result of the understanding that it could not survive without both Kamoli and those of his lieutenants who were committed to the joint project of mutual protect from the law by the government and the army. The question throughout this period was whether SADC was a willing partner in allowing impunity or whether it was gullible? For a while no one was sure, but there was virtually no movement in any of those areas. I dare say that, were it not because of the insistence of the U.S. on this matter, even the departure of Kamoli would not have been possible. Failure to implement the SADC decisions would have ensured that Lesotho would lose its beneficiary status under AGOA.

The question then is whether the Swaziland Summit (17/03/2017) can be seen as a game changer or another adherence to the Lesotho government’s obfuscation?

 SADC Summit Decisions in Swaziland on Lesotho

Following the receipt and discussions of the reports from both the Facilitator and the Oversight Committee, the Summit expressed concern about the circumstances in Lesotho which have necessitated the holding of the snap elections. Within the same context, the Lesotho was urged to address the fundamental challenges and bring about political stability. This recognition of lack of focus on the key issues over the past few years is important since it also indicates that SADC itself is fully aware that what it has tolerated since 2015 is not sustainable. SADC was presented with a mirage rather than reality on the fundamental questions about governance and rule of law. It is for the same reasons that the following issues were decided upon:

  1. Facilitator and the Oversight Committee were mandated to closely monitor the political and security situation in Lesotho during the election period;
  2. Facilitator and the Oversight Committee were mandated to conduct a “… multi-stakeholder national dialogue before the elections for 3rd June 2017 with the aim of building consensus and trust among all stakeholders and charting the way forward for the implementation of SADC Decisions”;
  3. Summit also decided that a Double Troika Summit convenes soon after the new government is formed after the elections on largely two things. First, on the need to implement SADC decisions arising from the Phumaphi Commission and the roadmap for such implementation. But more importantly the engagement should emphasise the need to address the “fundamental challenges, commitment to implement SADC Decisions and the consequences of not implementing the decisions and observing timelines” (my emphasis).

The issues therefore are that as Lesotho moves towards elections, SADC has now decided to intensify its intervention and monitoring. The decisions go beyond monitoring. It is now clear that Lesotho has become more than an irritant to the region; it has become a security concern. This is why the Facilitator is expected to monitor closely both the political and security situation in Lesotho ahead of elections.

Understanding the decisions

In an environment where there are concerns as Lesotho moves towards elections, it is critical that there is an intense international participation in order to deter intimidation. Lesotho’s institutions are virtually on the ground. Parliament for example, before its dissolution, was an arena of intimidation, with Members of Parliament being subjected to body searches and other forms of harassment. In parliament, the Speaker was no longer behaving like one, but a political hack pursuing the interests of the government.

The only thing, perhaps which provided the opposition with an opportunity to deal a mortal blow against the government was the everyday presence of some members of the Oversight Committee in Parliament. Without them, I have no doubt Members of Parliament would have been thrown out of the House when they resisted allowing the Minister of Finance to present the budget. The Speaker shouted over and over again that those who don’t want to listen to the budget speech must go out. None left the house until the parliamentary Business Committee sat and rearranged the business of the House. Standing Orders were being flouted with impunity by the one person who was expected to be their guardian. It is for reasons like this that the envisaged intense monitoring will minimise the attempts to subvert the elections.

The second most important decision by the SADC Summit is the decision that the Facilitator with the Oversight Committee should convene a multi-stakeholder forum to forge a consensus and trust on the implementation of SADC decisions. For anybody who has familiarity with the issues in Lesotho, it will be clear that we are faced with an extremely divided nation. SADC decisions on accountability and rule of law are the only issues around which there can be an agreement. This is not because all parties subscribe to those principles, but as a result of broad international consensus that Lesotho must be brought into the fold of civilised community of nations after the aberrations of the past two years where might was seen as right.

The multi-stakeholder forum as I understand it, is largely to agree on the following issues:

  1. a) June elections should be held in an environment of peace and tranquillity;
  2. b) Iron out obstacles for the achievement of the above;
  3. c) Bring about international guarantees to ensure peaceful elections;
  4. d) Ensure that all stakeholders recognise that SADC decisions arising from Phumaphi Commission are binding and inviolable.

In essence, the international community in Southern Africa is through these decisions saying to one and all stakeholders that the time for obfuscation on the implementation of the decisions is over. Indeed, schemes like the general amnesty bill, which has died a natural death with the dissolution of parliament, are not on the table. The only issue remaining is implementation of decisions.

Finally, SADC has sent out a message that it will follow-up the matters raised in the pre-election stakeholder forum with the newly elected government with two things in mind. First, to ensure that decisions reached in the pre-election forum are followed to the letter within the timeframes spelled out. But more importantly, it will serve as a warning to the new government that failure to implement the decisions will have consequences. If Mosisili had been given as clear a message as this in 2016 he would not have prevaricated the way he has done. It is a situation which we all regret that more than twelve months after the Gaborone Summit, SADC is only waking up to the reality that Lesotho has not moved in the right direction.

Conclusion

Establishing the Phumaphi Commission, even without the diligence to follow-up on implementation will always remain as SADC’s most important decision to assist Basotho to help themselves against a regime which was determined to operate in a sectarian and partisan way to suppress their rights.  It is doubtful whether people would have had the courage and the rallying weapon to free themselves from the clutches of Mosisili and Kamoli if they did not have the document to show what is wrong with the Mosisili regime. The vote of no confidence which has effectively demobilised and delegitimized Mosisili directly arises from the setting up of the Phumaphi Commission. It was the Commission which laid the foundation for the collapse of the regime. The spark however was the defections from the leading parties in the coalition, as a result of both rampant corruption and leadership squabbles, which led to the fall of Mosisili.

It is therefore not entirely correct to say that Basotho have managed to solve their problem on their own. SADC has played a role and with the Swaziland Summit in mind, we have to hope that no government can once again decide that corruption and murder can be tolerated. It is accordingly a great day for the people of Southern Africa as a whole that we are on the verge of removing the blot of impunity in our country and the region.

I whole heartedly welcome the intensified monitoring and warnings to whatever government that emerges after the elections that accountability and rule of law should prevail. We say never again!!

 

MMS/22/03/2017

 

 

 

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Emasculating the constitution and democratic practices: going for elections like no other!

Overview
One of the cardinal principles of the Westminster system of government, which Lesotho follows, is the principle that the Prime Minister must maintain the confidence of the lower house (National Assembly in Lesotho). Confidence does not necessarily mean that the Prime Minister has majority support in Parliament. This is why minority governments have survived in a number of countries. They all survive at the pleasure of the opposition. Once indications of lack of support or a vote of no confidence succeeds the Prime Minister has to fall on his sword. It is that simple. Those who attempt or actually succeed to rule without parliamentary support are not democrats by any stretch of imagination. Lesotho Prime Minister, who was overwhelmingly rejected by Parliament in both the indirect vote of no confidence (rejection of his budget), and a direct rejection through a no confidence vote, should under normal circumstances have quietly left office in favour of the person whom Parliament gave their vote to. Instead, he has devised several stratagems to extend his mandate for at least three months when elections are held. Democrats don’t behave that way! This as will be detailed below is not for nothing. It was meant to extent the government’s term by at least three months; attempt to destroy as much of the physical evidence of crimes committed by the government and its agencies; put in place an intense programme of intimidation ahead of the elections.
In Lesotho, lately we have witnessed a situation where the Prime Minister in spite of several manoeuvres lost the confidence of Parliament but hung on to power. Mosisili failed to have a budget even tabled, since Parliamentarians wanted him to submit himself to a vote of no confidence so that the budget could be presented by a more credible person who has the confidence of the House. After losing the battle of wills between the Speaker, who was used as hatched man, and the rest of the Members of Parliament, Mosisili then went ahead to unconstitutionally advise the King to dissolve parliament contrary to clear stipulations of Section 83 of the Constitution that such a role is that of the Council of State. His was clearly a case of trying to spite Parliament rather than to submit to its decisions.
Mosisili’s spitefulness extended to a situation where he knowingly pushed for dissolution of Parliament without spending authority. Either of the following consequences are now inevitable: a) a shutdown on government services including the holding of elections beginning April 2017 when the new financial year begins; or b) unconstitutionally taping into the Consolidated Fund contrary to both Section 112 and 113 of the constitution. Thus one illegality is necessarily going to lead to another unless Parliament is recalled to consider the budget. But that is unlikely since the combined opposition in Parliament has vowed not to pass any budget as long as Mosisili remains in office.
Overriding of constitutional provisions in Lesotho by Mosisili has had the effect of undermining democracy and consolidating minority rule whose only hope for survival is the continued use of force. The mutuality of interests between the government and the military establishment is based on the principle of mutual protection against the crimes committed over the years, particularly since 2014. As we proceed towards holding elections without spending authority in June 2017, the third such an election within five years, it is important to note that the constitution and democratic principles have been emasculated.
It all began with the attempt to manipulate Parliament and later other institutions like the Council of State which was sidelined on the determination of the direction after the vote of no confidence. Briefly we assess hereunder the issues surrounding Parliament and then focus on the type of elections we are being driven to in the context of illegality and before security sector reforms have been done. What kind of elections are we heading for?
Undermining constitutional democracy
Principles underlying the Westminster system of government as codified in the Lesotho constitution provide a guide for how the formal and informal aspects of the system of government should run. Over and above the systems spelled out in the constitution, there is an aspect of self restraint which ensures that those in positions of power should exercise. In an often quoted statement Madison, one of the founders of the United States Constitution pointed out that:
But what is government itself, but the greatest of all reflections on human nature. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In forming a government which is to be administered by men over men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.
Such systems however can only operate well only when those in office remember Madison’s precept above that they must learn to control themselves. All constitutions and all conventions are of no use if individuals in government superimpose themselves on the institutions. Mosisili, partly as a result of staying in power longer than is healthy, as Prime Minister, has begun to perceive Lesotho as his private fiefdom. Thus he has now deluded himself into believing that his word is more important than that of all institutions.
When it dawned on him that some in Parliament could no longer submit to his will, he took all the institutions head-on. In order to cling to power, several strategies were attempted with varying degrees of success. He started with an attempt to undermine Parliament through the Leader of the House and the Speaker who has lately become his hatchet man. After the re-opening of Parliament after it had been unprocedurally adjourned in 2016, the Speaker attempted to turn Parliament into an echo of what the government wanted. She attempted to sideline the Business Committee in the determination of the agenda; she attempted to delay and substitute the motion of no confidence for a budget proposed by a government which no longer hand the numbers in Parliament to rule; more importantly, she attempted to make rulings on Members interjections of point of order without reference to the standing orders. Where they pointed to a specific Standing Order, she would make rulings based on what she called procedure rather than any specific Standing Order. This behaviour transformed the mood in Parliament to one of unruliness and confrontation. Having failed to impose her will on Members of Parliament, the seating was adjourned and ultimately the Business Committee sat and allowed the motion of no confidence to be presented to Parliament and subsequently approved. The attempt to undermine Parliament had collapsed.
As already shown elsewhere, the adoption of the motion of no confidence unleashed a series of attempts to undermine the constitution and the democratic system itself. Let us analyse the issues which will be in the forefront of all political parties as we approach the elections. All these will revolve around the unresolved issues or reform and criminality rather than the usual issues of competing around socio-economic issues. I don’t even foresee any of the political parties focusing on the usual issues around programmes. On the contrary, it will be about security and corruption as part of the unfinished business.
Elections in an a corrupt and unreformed system
In 2014 after the unsuccessful coup d’etat SADC intervened and restored the government which had all but ceased to exist. The plotters were however not brought to justice but were kept in a system which the government had no control over. Rather than to deal with that security dilemma, SADC decided that Lesotho should go for elections. It was clear that this was to be polite, a foolish decision. Those who had attempted to stage a coup would either be legitimised by the elections or they would put the elected government in an untenable situation. As it happened, the elections led to a stalemate with those who largely supported the coup able to cobble up a coalition government made up of seven political parties. This gave them a narrow majority of five seats in Parliament.
The new government rushed to reinstate Kamoli, who had been dismissed as Commander of the Lesotho Defence Force; launched a campaign of terror throughout the country which led to the exile of all leaders of political parties represented in Parliament; detention of over sixty soldiers under inhuman conditions on suspicion of a mutiny; exile of scores of soldiers fearing for their lives; and the murder of the Lt. General Mahao, former Commander of the LDF by a specially selected group of soldiers which was rounding up all those identified as enemies of the Kamoli. It is under these circumstances that SADC once again intervened and appointed Justice Mphaphi Phumaphi to investigate among others the circumstances leading to the murder of Mahao. The Report of the Commission was adopted by SADC for implementation by the Lesotho government. The decisions emanating from that Report included the following, which are key, if the system of governance in Lesotho was to be seen as fit for purpose and ready to handle issues about elections:
a) Remove Kamoli as Commander of the LDF;
b) Suspend all suspects in the LDF while their cases are being investigated by an enhanced team from the police;
c) Undertake constitutional, administrative and security reforms.
It is now clear that Kamoli has officially left the LDF though his influence remains. It is not clear what role he continues to play in the army. All we have noticed is that he continues to be guarded by those guards he used to work with. This is at least one of the things where the government can be credited with having made progress and thus lessened the fear of the opposition. Kamoli has always been the public face behind the anarchy which began in 2014 in Lesotho. This is why he has been named in several public documents including the Phumaphi Report and the judgement in the Lesotho Court of Appeal in the case where Hashatsi challenged the legality of the Phumaphi Commission.
The most threatening issue however as we proceed to elections is that all those soldiers who attempted to overthrow the government in 2012; placed bombs in several homes where they thought former Prime Minister, Thabane, and the former Commissioner of Police could be there; murdered former Commander of LDF, Mahao, and others, remain in their posts. But more important, they have been promoted over and over in two years, and continue to hold on to physical evidence in most of those cases. In a normal political system, those who commit crimes cannot hold on to physical evidence.
It has been two years and over in some cases where those in the LDF have continued to avoid answering for their crimes. This extension of Mosisili’s hold on power until after the elections ensures that whatever physical evidence exists is destroyed should the current government lose the elections. Unlike in 2015 when elections were held in Lesotho under close supervision of the SADC Mission in Lesotho and with some modicum of security oversight, the present elections were called unilaterally by the government and prospects of outside supervision or oversight are slim. In 2015, SADC with all its weaknesses was at least able to ensure that the army, which had been involved in an attempted coup, was in a lockdown in the barracks for the duration of the elections.
It also means that as a way of self protection, they will work towards the maintenance of the status quo through intimidation and kidnappings, as we have begun to see even before the date of elections was announced. In a case for habeas corpus by Seleke and another versus Commander of the Lesotho Defence Force, Commissioner of Police and others where Seleke and Moeti were kidnapped in the middle of the night by known army and police officers and hidden in a rural police station in Semonkong, the High Court decided that their abduction and kidnapping was illegal. We have seen similar cases involving operatives of some opposition political parties in the past few weeks. It could easily be inferred that similar abductions will be undertaken as Election Day approaches. The overall impact of these on the outcome is uncertain, but it could be significant in the rural areas even on Election Day itself.
In a related manner it is important to assess issues about illegality and bad governance which may indicate that the forthcoming elections are likely to be those of a kind not seen in Lesotho before. Recruitment on political basis has intensified while those seen as less pro-government are being weeded out in both the police and other agencies. We were aware that the grant strategy of the government was to talk reforms while at the same time trying to politicise both the public service and the security services. It was a way of hoodwinking SADC and those who are less attentive to developments in Lesotho that we are dealing with a reformist government which was only being obstructed by the opposition. This was far from the truth. Three recent developments are indicative:
a) In a recent case in the Lesotho High Court one Makhalanyane, former aide of the Lesotho’s present Finance Minister who was initially in Foreign Affairs, challenged his dismissal for lack of performance. Makhalanyane in a sworn statement revealed that he was diligent in his work as attested by a list of members of the Democratic Congress (DC) from Mokhotlong district that he was instructed to list so that they could be provided with jobs in the government. He pointed out that all those youths whom he had listed have now secured jobs in the LDF, Police, Correctional Services and the Ministry of Foreign Affairs. Thus the veneer that there was an open and competitive process in recruiting people in the government was blown apart. We have an intensified campaign by the government to entrench itself in all security institutions.

But more ominous is the recruitment of one Limpho Sekhemane, a thirty six plus years of age, Councillor representing the DC in one of the District Councils in Mokhotlong district into the police service. As we speak Sekhemane is under training at Police Training College while he is still a political party representative in the Council. If this is not politicising the police, then I don’t know what it is!

As this post was being finalised, Monyane Moleleki, leader of Alliance of Democrats and former Minister of Police, confessed on PC FM radio this morning (15/03/2017) that when he was Minister, a quota was agreed amongst the coalition government on how the 250 positions in the police would be shared amongst their supporters. He apologised but clearly confirmed what we all knew. Jobs in the army, police and correctional services were prioritised for filling by political hacks that are now going to be used in the forthcoming elections.
These are the people who are likely going to be deployed to rough up people ahead of the elections.
This is not all, we have also witnessed the mass sacking of public servants in the Ministry of Home Affairs and the concurrent recruitment of those linked to the political parties in the coalition government. The Public Service Commission, which at the formal level is supposed to hire staff for Ministries has either been politicised also or sidelined.
b) Let us not forget that recently one Colonel Lekhooa, recent rank unknown because of multiple promotions for those suspected of committing crimes, has recently been deployed as Director General of the National Security Service, another beneficiary of recent recruitments of politically aligned people. This is another significant move which will allow and ensure that this spy agency becomes a tool of the current minority government. Lekhooa has multiple cases himself to answer and will accordingly work towards nullifying whatever evidence that could link him to those. The government which protects him and his colleagues from going to court will obviously be the one he would rather serve rather than those he has worked against from 2014.

c) Finally, we have to be aware that the matter which triggered the fall of Mosisili was the dispute about the corrupt deal between the Lesotho government and BIDVEST Bank. It is a deal whereby the government awarded a contract to BIDVEST without a tender process to supply it with vehicles and the management system. The government cancelled a process to award the contract to another company which had been selected by the tender panel and chose BIDVEST which had not even tendered for such work. The faction of the DC which was opposed to that decision for one reason or another broke away and joined the opposition. There is a lot of unease by both the government and BIDVEST on the consequences of any election outcome which may investigate and reverse the deal. Speculation is rife that those who have corrupted and those who have been corrupted may wish to subvert the elections in order to escape the consequences. It is clear therefore that the repercussions of this deal which costs the government over R60 million a month will go beyond Lesotho’s borders. It is the first time in Lesotho history that a corrupt deal brought the government down. This is without doubt one of the major issues of contestation in the coming elections. Who support corruption and who support clean government is the question?
The picture above indicates that the security services at the disposal of Mosisili have been strengthened are arrayed against the opposition in the elections we are about to go into. It is both a survival issue for Mosisili and also the people whom he has been protecting over the past two years. The government has something to protect and the suspects probably know so much that it is no longer clear who is the puppet, and who is the puppeteer. Elections are therefore a matter of life and death for both groups.
Conclusion
Lesotho is in a self induced constitutional crisis and alone. There are no indications that SADC or anyone else is likely to come for the rescue. For SADC, this is probably an easy escape route after bungling its intervention in 2014 where the Facilitator seemed to believe that he could coax coup plotters out of their crimes while at the same time treating the victims as mere irritants. Elections in insecurity were bound to produce the results we have today which brought up the Phumaphi Commission which came up with good recommendations only for those to be sabotaged by lack of will and credible enforcement mechanisms by SADC. Mosisili and his lieutenants saw through the body’s bluff, and continued to commit more crimes, leading to the present crisis.
With the government fearful of handing over power, and the security services enmeshed in politically induced crimes, we know that only the brave will continue to campaign in rural constituencies. But more important, June is the height of Lesotho’s winter, with snow normally expected. Darkness also comes early meaning counting will be done under cold and dark conditions. This is a good environment for those who want to undermine the elections. We hope all will survive those challenging conditions.
Basotho and the friends of Lesotho are warned!

MMS/15/03/2017

Mosisili’s scramble to retain power:Lesotho’s constitutional crisis

Overview
Recent Lesotho political history has been littered with instability, coup d’état and several other unconstitutional changes of government. For those outside Lesotho, the question has always been why so much happens in this small impoverished country unlike in the rest of the Southern African region? I have been trying to answer that question in the twelve months since the launch of lesothoanalysis.wordpress.com. At the heart of the problem in Lesotho has always been governments which are not focused on answering the needs of the people, but answer to the needs of a small clique of politicians allied or subservient to the military. It has been a case where politicians plot, murder and steal public resources without fear of consequences as a result of their alliance with some elements of the military.
The use of force against political opponents has always been the number one political strategy for those who want to cling to power. Use and connivance with rogue elements within the military have necessarily been key to their mutual survival. The clearest example is where military command and politicians connived and executed a plan to kill Lt. General Mahao; kill Sub-Inspector Ramahloko; attempt to kill several guards of the former Prime Minister; and detain tenths of soldiers for up to two years. Refusal to implement SADC decisions on suspending those soldiers suspected of committing these crimes and others is a result of this mutuality of interests in crime by government and the military. One cannot survive without the other. Both live in a bubble of impunity. If SADC was a body which acted on principle and knowledge rather than collegiality, it would have seen through that very early when the Phumaphi Commission was set up. Reluctance to implement decisions would have been understood clearly that those who commission crimes cannot be easily separated from those who commit them.
Recent developments in Lesotho have now taken a turn where the populace have rejected impunity by those who rule them. Indeed in their numbers, they have begun to reject those in government who stood with criminals and wish to protect them under a General Amnesty for crimes committed from 2007. The only qualification for such an amnesty being granted was being a soldier, a policeman, member of the correctional services or any individual who committed crimes on his frolic with the intention of protecting the government. In their numbers, the people have shown through rallies and also in their influence to their Members of Parliament to get rid of the present government. That was done through a vote of no confidence in parliament on 01/03/2017. Having been defeated resoundingly Mosisili has been scrambling since then to survive his rejection by Parliament. Unlike in all other West Minster systems of government where losing a vote of no confidence automatically leads to the resignation of the Prime Minister, Mosisili scrambled to hang on to power. Dissolving Parliament was only one of the ways of working towards extending his hold on power for up to three months; and more critically to go to elections before security reforms so that the criminal element in the security forces can be unleashed on the people before, during and after the elections.
Vote of no confidence and drift to constitutional crisis
A week or so before Parliament was re-opened (24/02/2017) after a long break, three newly formed political parties informed the Speaker of the National Assembly that that they request to have their members cross the floor when the Parliament re-opened. The biggest of those crossing the floor was the Alliance of Democrats (AD) led by Mosisili’s former deputy in the Democratic Congress (DC), Monyane Moleleki. On opening day of Parliament, fourteen members of Parliament moved from the DC to AD in the opposition benches. One more Member of Parliament left one of Mosisili’s coalition partners to move to the cross bench, while two others left the opposition side to the cross bench. Adding to Mosisili’s dilemma was the fact that nine Members of Parliament who had gone there on a party list and thus could not cross the floor, had already signed an agreement with the opposition to vote Mosisili out of office. The combined numbers remaining with Mosisili after the floor crossing was 37 in the 120 member Parliament. However on the date of the motion the government side relented and provided a meek resistance. The decision did not end up going beyond the voice stage without any need to divide on a one by one basis. It was still a humiliating defeat which Mosisili avoided by absenting himself from Parliament on that critical day. Humiliating or not Mosisili did not stand still. He began to prepare how to extend his time in office one way or another.
First, he had over the past weeks been advocating a bizarre position that he would not resign if he lost a no confidence vote. He argued that he would advice the King to dissolve Parliament and have the country go to elections contrary to clear and unambiguous provisions of the constitution that he should resign or make a recommendation to the King to dissolve Parliament. The advice, as I spelled out in my earlier post, is the responsibility of the Council of State. This stance as will be shown later was a drift to a constitutional coup leading to a constitutional crisis. It’s apparent that where a constitution allocates certain responsibilities to one person or body, such activity cannot be undertaken by another willy-nilly. This is so with this matter.
Second, Mosisili sought and got legal opinion from the Attorney General which sought for all intents and purposes to rehash Mosisili’s understanding of the constitution that his word is final with the King and the Council of State in no position to say anything. It was clear for everyone to see that the Attorney General’s view was not legal in any sense, but was a mere justification for staging a constitutional coup. It was selective and hardly dealt with the constitution as an organic document which has to be read in its totality rather than only the interesting sections which coincide with the likings of Mosisili.
Third, as the plot thickened, the deployment of police and army units around Maseru intensified. Indeed, Members of Parliament became so alarmed about the harassment they went through that they raised this matter with the Speaker. No satisfactory response came from her, but this was an early indicator that intimidation was on the cards should the need arise. This was not all. The shrill statements by the police spokesman in the past few weeks warning the public for one reason or another was significant. What all this indicates is that Mosisili’s government has been gearing for a showdown with the opposition. Winning in Parliament was only the beginning of the struggle. He was prepared to use any means to defy those who thought that his diminished status and support was enough to shove him out of power. He was prepared to play it dirty and outside the law with the support of the army and police.
Mosisili’s constitutional coup
Mosisili had vowed in several of his rallies throughout the country that he would not resign. As soon as he was booted out by Parliament, he went to the King to advice that it be dissolved. It is clear from all sources that the King attempted to resist the dissolution in view of the reading of the constitution. Mosisili persisted and it seems he prevailed. In the end, the Council of State did not meet in spite of the fact that more than seven of its members had apparently sought a meeting to deliberate on that matter. In a widely available letter written by the King’s Senior Private Secretary, Monehela Posholi there are no constitutional reasons offered for not holding a meeting of the Council of State in terms of Section 95(8) of the Constitution. The Section spells out that if one member plus seven others request the meeting such a meeting will hold. Posholi merely offers platitudes and not the law. He writes that:
His Majesty decided, in the interest of national unity and to avoid possible constitutional crises, to accede to the advice of the Rt. Hon. The Prime Minister for the dissolution of Parliament in preparation for the holding of general elections.
On further reflection His Majesty deemed it not prudent to convene a meeting of the Council of State as you had requested.
We sincerely hope that you will understand and appreciate the predicament that His Majesty faced.
What one deciphers from the above is that the Council of State which is the legal authority for advising His Majesty was sidelined for expediency and sentiments rather than for any legal reasons. Again the purported reasons of preserving national unity and avoiding possible constitutional crisis, have achieved the opposite. The person who had no authority to advice the King did and all that was to was achieve a three months extension of Mosisili’s stay in power. That Posholi uses words like “accede” and “predicament”is suggestive that this was Mosisili’s diktat rather than a constitutional action by the King.
More importantly, the decision was essentially self-defeating. Section 113 of the constitution spells out the role of Parliament in the appropriation and authorisation to spend money. If Parliament had begun the process of budgeting in terms of Section 112 but that process ws not complete, the Minister of Finance is authorised to use funds not yet approved for the first quarter. There are limits to this, but it is possible. In a case however, where Parliament had refused to consider the budged as is the case now, Lesotho is facing a complete shutdown from 01/04/2017. There is no possibility of accessing money from the consolidated fund. How then can elections be held without money?
What we have in Lesotho now is a full blown constitutional crisis without solution since Parliament has been dissolved before budgetary allocation. Government accounting under normal circumstances would be by way of issuing a warrant tor Ministries. But under these circumstances, anybody who issues such a warrant or uses any money from the consolidated fund would be making an appointment with prison. It is a deadlock and a constitutional crisis. As long as we pretend that we are operating constitutionally, we now know that elections cannot be held, nor can there be any government spending in April 2017. Mosisili has thus launched the country in its worst constitutional crisis. Let those in the government, particularly Chief Accounting Officers note that they have been placed in a situation where they have either to watch from the sidelines when the shutdown begins or prepare to go to jail!

Conclusion
Lesotho has gone through tumult and has often been rescued by SADC. At times SADC’s actions have been puzzling and not helpful. At other times it has mistaken the trees for the forest. In many years of its intervention, it has tended to be on Mosisili’s side. We have observed as it stood by now when Mosisili drives Lesotho to the ground. For once SADC has not attempted to get involved as Basotho tackle Mosisili. If he succeeds to hold elections rather than surrender power after losing a vote of no confidence, we must all be aware that the elections before security reforms will not be free and fair. Mosisili will once again go to power with tacit SADC support.
Mosisili’s constitutional coup has now launched us in unchartered waters. The only victims of this coup will be those who have not made hay while the sun was shining. Mosisili and his Ministers will dip into their reserves while the rest of the people suffer.

MMS/08/03/2017

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