Over a year ago, the bar talk or popular conversation amongst the chattering classes in Maseru was about bringing an end to impunity in Lesotho. With the arrest and charging of the main perpetrators of murder and torture, the conversation seems to be changing. This is in spite of the fact that none of those charged have gone on trial. This is the usual premature celebration syndrome suffered by the chattering classes. Of currency now is the big task of undertaking the reforms. The constitutional, parliamentary, judicial, public sector and security sector reforms have now been the main talking points in Lesotho.
While those in government talk about the roadmap and the broader issues about process, others particularly those who lost the June 2017 elections see threatening to scamper the reform agenda as their shield against their alleged misdeeds in the previous government. It is not uncommon to hear some vowing that reforms will not take place unless their preconditions are met. Their preconditions will be dealt with later. It is under these circumstances that one is forced to ask whose reforms are these anyway. We also have to debate whether it is permissible that any one group should or can have a veto power over an agreed national programme? I say an agreed national programme deliberately because; all political party leaders signed a pledge in April 2017 under the auspices the Christian Council of Lesotho and witnessed by amongst others, the Commonwealth and the European Union, that they would unconditionally go for reforms after the elections. Thus over and above the decision of SADC on reforms, this was agreed to be prioritised as a national agenda by all political parties prior to the June 2017 elections.
The mooted reforms as we should recall are not a new agenda which has come with the present government. As early as 2014 when there were squabbles within Lesotho’s first coalition government, SADC through its mission to Lesotho ( SOMILES) began to suggest that some of the challenges Lesotho faces are due to the inadequacies in its constitutional setup. That such prognosis is baseless is neither here nor there. They pointed out that the roles and duties of the military and the police among others, overlapped, thus bringing about the persistent clashes and mutual suspicions. These issues were finally submitted to the SADC Double Troika Summit in 2015 which decided that it was imperative for Lesotho to engage in constitutional and security sector reform at the earliest in order to minimise the chances of another political eruption. In consultation with most political stakeholders, agreement was reached that reforms were necessary.
Even before the SOMILES report was tabled and adopted by SADC, another initiative had been undertaken under the sponsorship of the Commonwealth to send a multi-party delegation which also included senior public officers to New Zealand to observe and study first-hand how Lesotho’s adopted electoral model (MMP system) operates. Dr Prasad who was then the Commonwealth Special Envoy to Lesotho chaperoned and painstakingly explained over and over again the focal points to be observed. The mission which was headed by Mothetjoa Metsing, then Deputy Prime Minister spent over a week in New Zealand and held numerous discussions with different institutions on how the system operates. Prasad subsequently wrote a report detailing the recommended reforms which would, they hoped, stabilise the country.
Instead of implementing reforms, elections were held and as expected produced an even worse political crisis. In his last visit to Lesotho before he retired, Prasad was an extremely disappointed person who lamented that the promises Metsing and other members of the delegation made to him came to nothing. They promised reforms and did everything to prevent reforms since those would have stopped their ambitions which could have only been achieved through the use of an unreformed military establishment. In a recent address to the Centre for Investigative Journalism, the South African High Commissioner echoed Prasad’s words when he indicated that the disappointing thing about Lesotho is that the politicians actually know what to do, but don’t do so for selfish reasons. With regard to the above, the question of whose reforms is easy to answer. The need for reforms was initially identified by both SADC and the Commonwealth but have since been accepted by all the internal stakeholders as pointed out above. Neither the Commonwealth nor SADC have vested interests in the process except that they don’t want to be operating a fire brigade mission in Lesotho every few years. This was made clear by the recent SADC Summit in Swaziland which spelt out that the reforms should be Lesotho led but with SADC support.
For Basotho in general, the reforms are a basis for the establishment of an accountable government which would inhibit politicians to believe that they own the country once they are in office. Specifically, the reforms should be able to protect those who feel that when they are out of government their safety is not guaranteed. It is constitutional structures which will minimise the overreach of the government. This is why it makes no sense for people to refuse to participate in the design and building of structures which would ostensibly protect them against an over powerful government. Let us not make any mistake; constitution building is about putting restraints against government. It is about ensuring that those in power rule within the confines of the constitution and other laws. Governments would be perfectly happy to rule unfettered by any rules if they could. The question then is what are the contested issues about the contemplated reforms?
Contrasting and changing visions about the reform process
Debate about the reforms process as we will recall was spelled out in several SADC summits since 2015. Specifically SADC wanted the Lesotho government to provide a detailed roadmap with clear timelines to the Swaziland Summit in August 2016. This followed Deputy Prime Minister Metsing’s failed shuttle diplomacy to Botswana, Mozambique and South Africa in March 2016 where he attempted to negotiate outside Summit the softening of decisions arising from the Phumaphi Commission. SADC then and now demanded a roadmap for the implementation of all its decisions including those about the reforms. A credible roadmap was never produced until Lesotho went for the June 2017 elections which brought about a new government. It is in pursuit of the above pressure to develop a roadmap that a UNDP assembled team developed a roadmap which was approved by Cabinet recently and awaits parliamentary approval.
The roadmap, in line with the SADC prescription should be inclusive and transparent. It is in line with this that Metsing, former Deputy Prime Minister who had fled the country in August, claiming he had uncovered a plot to arrest him was written a letter inviting him to return to the country in order to participate in the reform process. Inviting Metsing who has been self-exiled since August 2017 was accordingly an important step in ensuring that the opposition parties are well represented in the reforms. Metsing’s response together of those of his colleagues in the opposition is worth analysing since it indicates the state of play in the opposition parties. In a presentation on the reforms to a workshop organised by the Centre for Investigative Journalism in Maseru (08/12/2017) Dr Fako Likoti representing the Democratic Congress ruled out the possibility of the opposition parties taking part in the reforms as long as their “leaders remain out of the country”. He went further to assert that the reforms would be implemented at “gun point” as long as SADC has deployed a military force in Lesotho. This is more than scare tactics. It is an attempt to find a non-existent alibi to those who are really scared on a reform process which will deny them of the possibility of going back to office on the back of the military. We cannot forget how Mosisili, the former Prime Minister in 2015 after going back to office on the back of the military rebellion, publicly thanked the forces for having facilitated his coming back to office. Infamously, his Deputy, Metsing put it more bluntly that there are soldiers who had put their necks on the block for his party.
Mosisili was to later reiterate that stance in an exclusive interview with Public Eye where he pointed out that the opposition would not participate in the reforms.
We are unequivocal when it comes to that issue that we are not going to be part of the reforms under the circumstances. What we are saying is that government should facilitate for the unconditional return of exiled leaders, and secondly, we can’t go to reforms with the gun on our necks.
For Mosisili, the SADC deployment is tantamount to an invasion. This is just an excuse to avoid the embarrassment of losing elections. The reality of being out of power can be traumatising for those who have spent over a decade in office. Mosisili’s case against participation in reforms is incoherent and reflects badly on him as a former Prime Minister who had pledged to undertake reforms. Mosisili is probably just trying to be in sync with his former deputy, Metsing who has run away not for political reasons, but to avoid his charges by the anti-corruption unit which has preferred charges against him.
In his five pages letter to the Government Secretary Metsing lists numerous issues which makes him to fear for his life. Some of the issues he raises are listed below not in terms of frivolity or seriousness but randomly.
- During the inauguration of the Prime Minister a figurine of his party in a coffin with his picture were paraded by ruling party supporters;
- His deputy, Mokhosi was tortured by the police and those have not been charged;
- The arrest of Ramainoane;
- The reappointment of Professor Mosito as President of the Court of Appeal;
- The Prime Minister has labelled him a fugitive from justice;
The truth of the matter is that Metsing pronounced on SABC Television a day after his departure from Lesotho that the Youth of his party informed him that there was a convoy of police from Maseru to Mahobong, his home, who were going to arrest him. He feared that they would kill him. It was not as if there was any substance to it and there was never any indication that his arrest had anything to do with political issues. The police have obviously denied that they had any plans to arrest him.
The resistance against the reforms was predictable from the beginning. SADC facilitation, it must be understood would never be universally accepted. First there will always be those who perceive such an intervention as an instrument by their opponents to remove the last hope for them to go back to power through the use of the security services. The SADC facilitation and the deployment of troops are meant largely to: a) deter rogue elements in the military from preventing the implementation of SADC decisions arising from the Phumaphi Commission; b) ensuring that the reform process is done transparently and inclusively in order to ensure that the outcome is accepted by the Basotho as a whole. Those in the government and those in the opposition who have misunderstood this may have to reflect. The facilitation will not be in the hands of any of those groups.
Can the opposition stall the reforms?
We now have a clear picture of the issues and what is at stake. The question then is whether the reforms can be scuttled by the boycott of the opposition? The problem which the opposition spokespersons have is that they are relying on what Section 85 of the Constitution spells out as a route to changes in the constitution. As we will be aware, there are some sections of the constitution which are entrenched, while others are double entrenched. Section 85 therefore talks to amendments to the existing constitution. It does not deal with the nuclear option, which could be taken in circumstances where it has become impossible to amend the constitution. I will deal with this last.
Let us understand that most of the items which are on the table in the reform process do not require tampering with the Constitution. The Security Sector Reforms for example, can be done through ordinary legislation in parliament. Nothing in the Constitution could stop broad based discussions and agreements by stakeholders on the direction of the security establishment. The focus would be to come up with the threat perceptions and how to deal with them and through which structures. The scrutiny of the Lesotho Defence Force Act; the Lesotho Mounted Police Service Act; and the National Security Service Act is all that needs to be done. Those, therefore who are not keen to participate in the reforms, but would want to use the unreformed structures for their own purposes may find that the train has by-passed them. Nothing will be gained here by boycotts.
Even assuming that work could stall, the contributions of stakeholders who will inevitably include some of the supporters of the boycotting political parties will be received and considered by the stakeholder forum or national conference. Those sections of the constitution which are entrenched don’t have to be debated in parliament where the ruling coalition is short of a two thirds majority. Let us not deceive ourselves, proposals can be discussed and agreements reached and the timing of seeking parliamentary approval would be left with the Constitution Making Body and the government.
The importance of SADC presence in Lesotho with its Oversight Committee, intelligence and police operatives cannot be underestimated. All those structures are observing, and report to their principals. If people run away to South Africa rather than face corruption cases, the police and intelligence people will know. Let us remember than amongst all those intelligence people, we have some from South Africa. If on the other hand, there is an attempt by the government to undermine the rule of law, the same operatives and the Oversight Committee are at hand. So the issue of Metsing will be seriously scrutinised since he is the only one who can claim that he has run away. Since Metsing has not applied for political asylum he could be brought to Lesotho not for reforms but to face trial should that option be necessary. Should the DCEO seek his extradition it will be the South African Courts and not the government which will make the decision. Fortunately South Africa is not a banana republic as Al Bashir and Grace Mugabe can testify.
Mokhosi’s case is different, since he has been charged of murder and on bail. The fact that he claimed to have run away from the police only to report monthly to the police in line with his bail conditions, makes this case a rather curious one. There is nothing to be said about Mokhothu, Deputy Leader of the Democratic Congress. His leader is around the country and nobody would ever be bothered by Mokhothu. He is nothing but a publicity seeker.
It is obvious that the opposition is putting itself in a situation where it will be under considerable pressure from SADC to participate in the reform process otherwise reforms would continue without them. But more importantly they have nothing to gain by boycotting the reforms since those will continue in their absence.
Failing to persuade the opposition to participate in the reform process could lead to the unleashing of the nuclear option. This is the least desirable option, but it can be the thing which can unlock the logjam. Once the negotiations have been completed, and agreements reached on the future constitutional dispensation, parliament could by a simple majority pass a resolution to hold a national referendum to have a new constitution rewritten and approved. There are several ways of doing that. The first one is to place the agreed constitution before the totality of the people through a referendum.
Alternatively, it could be a referendum to give parliament power to pass a new constitution by a simple majority. The nuclear option can only be utilised in order to pass a new constitution. Unlike the amendments to the current one, which would have to go through the scrutiny of Section 85, the writing of a new constitution would be directly authorised by the people in a popular vote. The opposition is bound to lose more if they end up facing the referendum rather than negotiating the best deal for the country. Let lawyers quibble over this, but this is real politics which those who believe in conditionalities have to deal with.
Merry Christmas and a Happy New Year to all my interactors!