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

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