lesothoanalysis

Overview
Talking reforms in order to frustrate or stop reforms is a popular game of Lesotho politicians. All of us know that it is politically untenable to oppose reforms of the political system as a whole since there is a broad national and international consensus that instability in Lesotho can largely be attributed to the dysfunctional institutions. Almost all politicians are also aware that the politicisation of the judiciary, public service and the security services is a toxic combination leading to chronic instability that has plagued us for a long time. All politicians cry foul of these when in opposition, but revel using those unreformed institutions when they are in power. It would be funny if it were not so tragic that in discussions with some public officers, they unambiguously and unashamedly “hoist” their political party flag rather than speak to you as public servants. This is perhaps their way of anchoring their positions in the bureaucracy rather than acting as the servants of the people as the term implies.
For politicians the reforms process seems to be the hiding place for them to stage a route to power for those who are out of power, while for those in power, the reforms are a means to cement their hold on power. Neither position is honourable. In order to ensure that we are not duped into believing that there is a genuine process towards reforms, we have to understand the issues around the skirmishes of the Lesotho politicians. Their fight over this has nothing to do with patriotism, or ignorance. It is an untidy struggle by each group to control the process and ensure that it would strengthen their version of the reforms games and not the reforms. These games would necessarily bring about an unreformed system serving their interests. When all is done, the politicians will emerge as the winners and the people the losers.
It is critical to sketch out the background of the current process of reforms in Lesotho; the contesting versions of the main political players; and the way forward. The way forward has already been decided by the political parties with the support of several international bodies. This is why all those political forces which want to undermine the process talk reform but undermine reforms.
National and international consensus on reforms
At the height of the current Lesotho crisis which has led to the deployment of SADC military personnel in Lesotho, an important report was penned by the SADC Observer Mission to the Kingdom of Lesotho (SOMILES) headed by Cyril Ramaphosa, Deputy President of South Africa. It identified the key issues contributing to instability in Lesotho. Briefly, the substantive issues in the Report talk to issues about the constitution on how power has to be exercised and by whom. It also observes that security and public sector reforms are imperative if Lesotho is to move away from its perennial instability. The Report goes on to identify the specifics of the proposed changes. The Report was adopted and has been the basis of the titanic struggle of SADC and the successive governments in Lesotho on how to go about those reforms.
The most important issues which arose as early as 2015 were those about process. The Report spelled out that the question of reforms must be inclusive and transparent and must be owned by Basotho as a whole. In an important paragraph the Report points out:
Any constitutional review process needs to be embarked on through a process that will be seen to be legitimate and credible by the populace. It has become a generally accepted practice worldwide in constitution making processes that such projects must include an interactive platform between the government and its nationals. It also functions as an empowerment process where the government gives its people the right to decision making. Constitutional review is no ordinary law-making process and often requires the adoption of extraordinary processes.
Numerous SADC Double Troika Summits since then have reiterated the need to engage in a credible reform process in Lesotho. These culminated in the 37th SADC Double Troika Summit of Heads of State and Government in Pretoria in August 2017 which spelled out clearly that Lesotho should go through a reform process which will be preceded by a “Multi-Stakeholder Forum”. In a Communiqué SADC urged the Lesotho government to develop a roadmap on the implementation of SADC decisions with “..concrete, clear milestones, and deliverables and report progress at the next meeting of the Double Troika Summit to be held in November 2017”. But perhaps the key issue which was raised in the Communiqué was the question of process. SADC spelled out that the Multi-Stakeholder Forum must precede reforms.
Summit reiterated the need for a multi-stakeholder dialogue, bringing together all relevant stakeholders in the Kingdom of Lesotho, which will enable an inclusive and transparent means of ultimately, implementing the Reforms recommended by SADC. This dialogue must be led by Basotho with SADC providing the expertise to support the dialogue process.
From an international perspective, it is clear that the process is as important as the reforms themselves. The attempts at unilateralism are likely to be frowned upon by the international community and are bound to fail.
At the national level three important developments have taken place indicating the groundswell of movement to a national consensus on the processes and content of the reforms. They are put down in any order of importance.
a) A peace pledge was signed by all political parties to accept the outcome of the elections in 2017 and committed themselves to hold a multi-stakeholder dialogue ahead of the reforms. This was under the auspices of the Christian Council of Lesotho and witnessed by among others the European Union and the Commonwealth. Commenting on this the Commonwealth Secretary General who was in Lesotho during the period, pointed out that “…All parties have also confirmed their commitment to a multi-stakeholder approach to the reform process, proposed by regional body South African Development Community”;
b) In November 2017 the Lesotho Council of Non-government Organisations (LCN) organised a two day Workshop attended by several stakeholders including political parties and the government where the issues of the reform process was paramount. It is in the same forum where both the SADC Facilitator and Lesotho’s Deputy Prime Minister made some speeches. A clear consensus on how to proceed with the reforms emerged from the different panels;
c) In a follow up workshop in December 2017 by the Transformation Resource Centre (TRC), a similar outcome was reached. In essence, there is no dispute that a broad-based reform process for Lesotho is the only way forward since the different stakeholders in Lesotho are in agreement that national healing and agreement on the way forward on reforms have the backing of most Basotho.
It has to be understood that the envisaged reforms are about how the country is governed, by whom and how? Such reforms are largely meant to reduce the power of politicians on the institutions and to increase their accountability to the citizens. It is thus not surprising when politicians coalesce and try to retain their present dominance of all institutions. They fight separately, but for a common cause. Those in opposition want the reforms stopped until they are in power, while those in government want to use undemocratic means to achieve a façade of reforms which they will superintend on. Both have to be stopped.
Attempts to frustrate reforms
After signing on to the pledge to undertake reforms preceded by a multi-stakeholder forum, and not a multi-party forum, the main political blocs in the country are now trying to sabotage the reforms. In their different ways, they use different approaches, to achieve the main objectives of the political elite-retaining the present system while pretending to be for reforms. What are the stances of both the opposition and the government on reforms?
Opposition duplicity on reforms
After losing the elections in June 2017, the opposition parties lead by the Democratic Congress (DC) have been dejected and uncertain of the way forward about the reforms. Their reform agenda before they lost the elections was clear; they wanted a process which was closed and meant to cement their dominant role. Thus they organised a sham workshop on Security Sector Reform which only included the government and the military with African Union and SADC observers. None of the security sector experts participated and also no civil society and political party representatives participated. It was truly a shameful sham!
Their process also involved an attempt to appoint a known political hack as the lead person to undertake reforms working with Deputy Principal Secretaries. The process was so blatantly exclusive that they could not sell it to anybody since it also excluded political parties and civil society organisations. Even the Christian Council of Lesotho which has tended to mediate in most of the self-created political problems in Lesotho were excluded from the process.
After the elections’ defeat, the opposition parties summersaulted to want inclusivity and transparency but even then on condition that:
a) Opposition leaders in exile for different reasons are provided with an amnesty so that they can participate in the reforms. The question whether even those of them who have escaped fraud charges should be provided amnesty has not been clear.
b) A government of national unity (GNU) be agreed upon and formed in order to ensure that the playing field will be level;
c) An amnesty be granted to all those who committed political crimes including the release of the soldiers who have been charged of crimes like murder. Specifically they demand that Kamoli, former Commander of the Lesotho Defence Force (LDF) be released from prison;
d) The SADC military deployed in Lesotho leave the country;
e) The appointment of Professor Kananelo Mosito as President of the Court of Appeal be revoked.
In essence, what the opposition want is that the rule of law should be suspended and their allies who committed horrendous crimes like murder and throwing their victims in dams should be forgiven for the sake of expediency. In another language, that is called blackmail. If they don’t get what they want, they will not participate in the reform process. A truly empty threat since the process is not one where a political party can have a veto power.
How government shot itself on the foot?
On the other hand the government also has its own demons. It proclaimed from the beginning that it would implement the decisions of SADC in full. But like the opposition, when in power, the demand by SADC that a roadmap with timelines which was supposed to be with SADC by November for a Summit of the Double Troika has not been submitted. The best that has been done is to have a UNDP support consultancy which produced the reforms roadmap. But then a big led-down began. Instead of ensuring that a process to reforms began in line with the agreements before the elections in the pledge; and in line with the decision of the Double Troika, the government sought to subvert that through unilateral actions. The following steps were undertaken by the government.as part of its reform process.
Government submitted a National Reforms Commission Bill, 2018 to Parliament on its opening day after a break and immediately proposed to move the suspension of Standing Order No. 51(5) (To be moved without Notice Standing Order No. 32(3). The implication of this was that Parliament would not discuss the Bill in Committee but it would be done quickly without any scrutiny. This was a typical ambush which would also ensure that the public had no say on that Bill. It took a petition to Parliament by Development for Peace Education (DPE) and other civil society organisation to refuse to accede to the proposal to suspend Standing Order 51(5) for the government to change its mind. In addition, DPE in its petition spelled out that the only sensible thing to do is to defer the law pending the holding of a Multi-Stakeholder forum. “Exercise its power to defer this Bill pending the upcoming multi stakeholder conference where ideas would have been gathered from different stakeholders to inform the law”. The issue is very simple, none of the Stakeholders has commended on the Commission law. It is even doubtful whether a Commission is the appropriate vehicle for dealing with the reforms.
Substantively, the Bill itself is so outrageously undemocratic that one wonders whether drafters are familiar with modern democratic jurisprudence informing reforms. Two examples will suffice. First, Section 6(1) on the appointment of the Chairperson of the Commission is astounding. “The Chairperson of the Commission shall be appointed by the Prime Minister on the advice of Minister”. Who would ever accept that situation where effectively all other players are side-lined and the Minister and Prime Minister are the only important actors in the reform process? You cannot aim at achieving good by using undemocratic means. Part of the challenges of the present constitution is the unfettered powers of the Prime Minister. Neither any independent structure nor Parliament has a say on decisions of the Prime Minister.
Again Section 14(1) spells out how the proposed Secretarial of the Commission would employ staff. Once again it is the Minister who superintends. “The Commission in consultation with the Minister may appoint, such staff of the Secretariat as it may consider necessary or the better performance of its functions”. The problem is that this law prejudges the issues and is backward in the contemporary debates about reform. It gives the Minister the type of powers that African ministers in pre-democratic era took for granted. This is not only a procedurally flawed law, but it is substantively a bad law.
Conclusion and way forward
The argument above is straightforward; politicians want to hijack our only opportunity to bring about accountable governance structures in Lesotho. While they may seem to be at loggerheads occasionally, they will get together to plot against the broader interests of the public. Indeed, the proposed meeting of political leaders is such a scheme. The reforms, we have to reiterate, are not a property of politicians; politicians are only part of the stakeholders. Decisions which they take excluding the broader public will amount to the sham which was used by the military to consult the people when the present constitution was written. It was a politicians’ constitution, and serves those in power very well.
In this context, the only way to salvage this process is to ensure that the present Bill is shelved while the stakeholders are convened to debate the issues and come up with document which is fully owned by the people. About the best route if one wants a law is one which establishes the interim structures for holding the Stakeholder Forum It is the Forum which would indicates the structures necessary for undertaking reforms. To legislate before the Forum is essentially to attempt to pre-empt the process and to delegitimise it.
It is up to the people as a whole and the friends of Lesotho to demand that the process which was accepted by all before the June 2017 elections be followed. For those who want suspects in crimes to be released as a pre-condition for their participation in the reform process also, we categorically say to them, stay where you are while the reforms proceed. We can no longer accept blackmail on the reforms process.

MMS/24/01/2018