lesothoanalysis

 

Overview

 

Two and half years out of office as Prime Minister for Mosisili were an unbelievable nightmare. Almost two years since he regained office, though not power, Mosisili’s time has been an unimaginable nightmare for Lesotho and the Southern African region. But the election period which was the result of Mosisili’s defeat in Parliament and the subsequent dissolution of Parliament, have witnessed a sprint to fill the gaps in capturing key state institutions so that he could rule from the grave. This will prove to be the most pivotal period in Mosisili’s attempts to fully capture the state so that his successors will have virtually no influence in the future of the country for at least twelve months if they are innovative. Without adequate plans, this would be the end of their political dominance even if they win the elections.

 

Mosisili’s second coming as Prime Minister was dramatic and tragic at the same time. The seven-party coalition which Mosisili cobbled was too narrow to effectively govern, particularly in a divided country. But more importantly when one considers that three of those political parties did not strictly speaking qualify to even have one seat in parliament that makes the situation worse. In the 2015 elections, political parties were awarded a proportional seat if they had amassed 4,600 votes throughout the country. The table below shows the number of votes three of those parties Mosisili struck a coalition with had in the 2015 elections. 

 

Political Party	Total number votes	Number of seats per quota	Number of compensated seats
Marematlou Freedom Party	3.413	0	1
Basutuland Congress Party	2,721	0	1
Lesotho People’s Congress	1,951	0	1

 

 

 

As will be clear, all above were compensated with one seat per political party because those were left over when seats were allocated. Since we do not have an overhang system as in Germany where this Mixed Member Proportional model comes from (MMP), the seats were given to the next deserving in numbers. Incidentally each of the leaders of the above political parties became a Minister even though they did not qualify to have a seat but were rewarded for failure so to say.

 

The period was also tragic since the narrow coalition forced Mosisili to either work civilly with the opposition or resort to the use of force. He was not able to resort to the former since some of his coalition partners and the unreformed military wanted vengeance against those in the opposition who attempted to remove the then Commander of the Lesotho Defence Force, Kamoli. In the end people were killed, tortured and exiled. This led to the establishment of the Phumaphi Commission of Inquiry and subsequent decisions by SADC.

 

At the executive level, Mosisili cleared the decks by removing the Government Secretary, who heads the public service; and not less than fifteen Principal Secretaries; removed the Commander of the army; removed the Commissioner of Police; removed the President of the Court of Appeal; and unsuccessfully attempted to remove most Ambassadors from their postings. The replacements of those were revealing in that all the new appointments were made up of card carrying members of the seven party coalition. But more significantly, the re-appointment of Kamoli as a Commander of the Lesotho Defence Force consolidated Mosisili’s control over the armed formations. Working with the other lawless elements in the force, who had refused to submit to civilian control in 2014-2015, the transformation of the forces to a militia was completed.

 

The processes to ensnare all critical structures of the state into a situation where they have become Mosisili’s echoes have continued up to four weeks before the snap elections expected 03/06/2017. They are unlikely to stop even up to the last day. Since the dissolution of Parliament, Mosisili has accelerated the process of appointments with a clear view to ensure that his influence will be felt long after he has disappeared from the political scene. As will be argued below this is not only unethical but goes against the conventions in a Westminster system of governance. What is key here is to clarify the cardinal principles underlying the caretaker government in the Westminster system of governance and how Mosilili has fared. The question then is whether Mosisili’s successors will be able to unravel the system which was meant to prevent them from implementing their policies after the elections.

 

 My well informed assumption is that Mosisili will lose the elections in spite of intimidation and fraud that is expected. But, more importantly, Mosisili is likely to use the militia he has created to retain office and not power, after losing the elections. The real power will always be with his militia rather than him and his allies. But the militia he has created and several other civilians are fearful of the possible loss of elections by their patron since they are listed in the Phumaphi Commission Report to have committed several capital crimes. They are therefore in a panic and would be ready for anything to prevent the transition

 

Flouting the conventions of a caretaker government

 

It is important to note that our constitution is based on the Westminster system of government. Not everything that sustains that system is therefore written in the constitution. This is so in the United Kingdom, Canada, Australia, India and others.

 

I am therefore not going to refer to anything which is written in our constitution but only to certain unwritten customs and conventions which we have observed over the years and which come to us as a consequence of having inherited a parliamentary system of government from the United Kingdom. This is important since much of what is fundamentally significant to the successful operation of a parliamentary system of government is based on custom and convention. The constitution does not and could not attempt to cover every conceivable eventuality.  Jurisprudence on this issue is rich and has generally been the foundation of interpretation of what is the norm in a parliamentary system of government.

 

Briefly, the caretaker period begins at the time Parliament is dissolved and continues until the election result is clear or, if there is a change of government, until the new government is appointed. 

 

 During the caretaker period, the business of government continues and ordinary matters of administration still need to be addressed.  However, government work is restricted in at least three ways:

 

a)      important decisions which are likely to commit an incoming government are not made by Ministers who cannot be held accountable once the Parliament  has been dissolved;

 

b)      making significant appointments is not done;

 

c)      entering into major contracts or undertakings is also not done.

 

Major reasons behind these conventions are clear. It is to protect the interests of the state against misuse by politicians who could be tempted to electioneer or to hamstring their competitors after the elections. But more importantly is the fact that after the dissolution of Parliament, there are no oversight mechanisms for actions of Ministers. Again in our system of government after the dissolution of Parliament, Ministers are technically ordinary members of the public. Ministers can only be appointed from Parliament hence they no longer have the political authority once dissolution has been effected.  

 

How then do these fit with Mosisili’s recent actions after the dissolution of Parliament? At every level one views this, it is clear that Mosisili has not gone into a caretaker mode. For him there is no difference between the post-election period in 2015 when he ascended to office and the present time after the dissolution of Parliament. In an earlier publication in lesothoanalysis I argued that the main reason why Mosisili would not resign and hand over power to anybody designated by Parliament was to extend his rule even if it’s for a few months in order to complete the unfinished business of deploying his relatives and allies to key positions. Some of those appointments like the appointment of his son-in-law as Ambassador, Moshe Kao, to Switzerland were done on the verge of dissolution. This thus was technically before the caretaker role had kicked in. If anything, it can be criticised for reasons like nepotism and also that it did not go through proper channels.

 

In order to show the utter disregard of the caretaker conventions I list hereunder key appointments which Mosisili has been rushing to fill before the elections. Most have already been filled, while those of Ambassadors seem to be stalling because of questions being raised by the Public Service Commission.

 

Post	Location	Name	Status
Chief Delegate	Lesotho Highland Water Commission	Rethabile Mosisili	Appointed (April 2017)
Ambassador	Dublin, Ireland	Dr. M. Ntho	Deferred by Public Service (10/04/2017)
Ambassador	Tokyo, Japan	Mr. T. Green	Deferred by Public Service (10/04/2017)
Ambassador	Berlin, Germany	Mr. A. Rat’sele	Deferred by Public Service (10/04/2017)
Consul General	Durban, South Africa	Mr. R. Nkoka	Deferred by Public Service (10/04/2017)
President	Court of Appeal	Justice Nugent	Appointed (22/04/2016)

 

By any standards these are key positions which under no circumstances should be made during the caretaker period. Lesotho Highlands Commission is the most important institution on both infrastructural development and also strategic water resources in the country. Mosisili’s son, is not only the least qualified person to represent Lesotho, but represents the type of disruption to the work of the Commission that it could not be sustained by any successor government. At the critical stage when work has to begin, Mosisili brings his son whose only qualification is that he is his son. This is part of the web that Mosisili is weaving. At the personal level, he probably hopes that his son would get a hefty compensation when a new government takes over. That his son will be removed he must know.

 

The same goes to the key ambassadorial positions in key countries. At the very least, during a period like this, governments can appoint people in acting positions not long term ones which will affect the ability of the new government to implement its policies. It is wrong and hopefully the countries those designated ambassadors are supposed to go to will see through this mirage Mosisili is weaving and wait for the new government to confirm their appointment.

 

The final stroke by Mosisili has been the appointment of Justice Nugent to head the Court of Appeal. The question is not about his competence or allegiance to the Mosisili regime. It is about the period and the significance of the appointment. Being appointed during this period to a senior position is like that is like waving a red flag. Senior judicial appointments are particularly sensitive in a period leading to the holding of elections. This week the Lesotho media has been reporting the concern of the Independent Electoral Commission about the mood in the country. The Commission suspects that the post-election period could be troublesome. It is these challenges which will place the judiciary at the centre of the electoral process if there are election petitions. Will Mosisili’s competitors be comfortable with a judge who has been appointed and spirited to Lesotho four weeks before elections? It’s a question of controversy and perception that appointing bodies and appointees should be wary of.

 

Indeed in Australia there is unanimous view that the ‘significance’ of an appointment can be assessed through two considerations – the importance of the position and the likelihood that the appointment would be controversial. Controversy is the last thing a judicial appointment needs.

 

The question therefore is how can Mosisili be stopped? Also how and who can ensure that this web which Mosisili has woven including use of the militia, key public sector appointments and also key judicial appointments during the caretaker stage don’t affect the electoral process? But more importantly, are there ways of unravelling this web shortly after the elections?

 

 Mosisili’s last stand

 

Mosisili knows that in any credible elections he will lose. The only question would be the margin of his loss. This is why he has now firmly nails his colours to the mast to defiance and obstinacy. His last chance is to refuse to be placed in a situation where there are internal and external arbiters on what he does. This is why he has emphatically rejected SADC’s decision that there must be a pre-election Stakeholder Forum arranged by the Facilitator and the Oversight Committee.

 

Writing to the King of Swaziland as Chairman of SADC, in typical Mosisili style, he scolds SADC for interfering in Lesotho’s internal affairs by suggesting in the Communiqué of the Extra Ordinary Summit of SADC Heads of State and Government, in March 18^th 2017 that the Facilitator and the Oversight Committee be charged with the responsibility to “monitor the political and security situation in the Kingdom of Lesotho, during the election period.” He views this as an attempt to erode Lesotho’s sovereignty. But more importantly Mosisili insultingly labels the multi-stakeholder forum spurious.

 

At para 12, the Facilitator and the Oversight Committee are charged with yet another spurious responsibility “to conduct a multi-stakeholder national dialogue before the Elections set for 3^rd June, 2017”. With respect, we find this most unrealistic and absurd. How and where on earth, would anyone have time for this multi-stakeholder dialogue during the campaign period for elections?

 

Thus Mosisili flatly rejects the decision to have a multi-stakeholder forum. This is ostensibly because of electioneering processes and also for purposes of defending Lesotho’s sovereignty. The real reason however is that Mosisili wants to have a free reign to intimidate and misuse state resources as he goes towards elections. More importantly, he knows that all the opposition political parties would like to use the forum to commit to a peaceful election and to bring about the necessary monitoring and guarantees of the same by SADC. Indeed in a joint statement, the four opposition political parties which were represented in the dissolved Parliament have reiterated the need for a pre-election multi-stakeholder national dialogue in order to reign in Mosisili and his cohorts in order to ensure peaceful elections. Nobody is now talking about free or fair elections because that is an unattainable thing. But people are demanding peaceful elections.

 

Mosisil goes on laments that “para 13” of the Communiqué brings about the endorsement of convening a Forum immediately after elections to engage the government on implementation of the decisions and recommendations of the SADC Commission of Inquiry. He expresses shock at the veiled threat of the “consequences” for failure to observe timelines imposed on us. This he argues is a complete departure from established procedure for managing inter-state affairs.

 

But what seems to irk Mosisili most is that “…the Head of the Lesotho delegation, Honourable Deputy Prime Minister Mothetjoa Metsing, MP, we were NOT accorded the opportunity to be heard.”  Indeed Mosisili makes his own veiled threat to withdraw Lesotho from SADC. He argues “It would be a sad day if indeed we were to allow SADC to degenerate into a body where might reigns supreme…This is NOT the SADC we would be proud to be a part of.”  

 

This essentially means that Mosisili has drawn a line on the sand that he does not want to have anybody to tamper with his project to live beyond his mandate after the elections. It means that all national and international restrains which could ensure peaceful elections are thrown overboard. Indeed the type of elections which took place in Zimbabwe in 2008 is the only likely end if Mosisili has his way. What are the scenarios for Lesotho?

 

Conclusion and scenarios

 

What we have tried to show here are essentially three things. First is the fact that Mosisili has woven a web at all levels of the state in order to secure his future after his prospective loss in the coming elections. He has done so by embedding his relatives and surrogates in all structures, domestic and foreign in order to rule from the grave. But more importantly, in a few years he has succeeded in turning all the armed formations in the country into his militia which will do anything but accept his replacement. This is made more important as a result of the findings of the Phumaphi Commission that the leaders of that militia which are now elevated to be part of the Command, face criminal investigations for High Treason, murder and other serious crimes. The militia is unlikely to want to end their lives in prison.

 

Second, I have shown that the caretaker conventions place restrictions on the caretaker government. Mosisili has all but ignored those and is speedily trying to fill all significant posts in both the public service and the parastatal sector.  This is also part of the web he wants to weave for his successors.

 

Thirdly, Mosisili dismisses SADC for trying to slow him down on this path of ignoring every possible restraint as elections approach. What is clear is that he has seen through SADC’s weaknesses of dealing with him with kid gloves. For more than a year after it made decisions based on the Phumaphi Commission, Mosisili has played SADC around at times claiming he has accepted the decisions to undertake constitutional, public sector and security reforms only to do nothing of the sort. It was a game of talking reform not to reform. As a result of this, the situation as elections approach is more perilous than at any time before.

 

Two scenarios are clearly discernable as elections approach. First is the scenario of the Mosisili militia intimidating people before and during the elections. This could lead to a situation where elections are disrupted particularly in rural areas. This is most likely scenarios since losing elections would certainly lead to the prosecution of the militia for the crimes they have committed from 2007. The stakes are very high. Protecting the people against the militia is not possible unless there is massive foreign monitoring which Mosisili does not want. We’ll see whether Mosisili will cooperate with Ramaphosa’s proposed mission to Lesotho on 9^th May 2017. So far, Mosisili has not responded to the correspondence from the Facilitator.

 

The second scenario, which can be called the devil’s scenario, is one where the winners of the elections are eliminated. This is more so if whoever wins the elections puts himself into a public ceremony for swearing in without any protection. Just imagine that the criminal gang which forced the former Prime Minister Thabane into exile in 2014 and again forced him and other opposition leaders into exile in 2015 can now be expected to look after the security of any of those. It would at best be reckless and at worst stupid to present a clear opportunity for an assassination to the militia. About the best that can be done is a private swearing in ceremony which would allow the new Prime Minister to arrange an appropriate security detail after before an inauguration. The Gambian situation presents itself as more attractive one for whoever wins elections.

 

It is clear to me that Mosisili will lose the elections and will try all within his means to hang on to office. Even if he wants to leave office, his militia is most unlikely to agree to hand themselves over to account for their crimes.

 

 

 

MMS/30/04/2017