The Kingdom of Lesotho – a small landlocked country in southern Africa with a population of 2.1 million people – has failed to introduce key political reforms needed to bring stability to the country. This setback is the latest of many false starts since the reform process started in earnest after the 2012 elections.
It had been hoped that the 2022 national poll would be held under a new constitutional framework that would help end conflicts in key areas such as the formation of government, coalitions and the electoral system. Lesotho’s history has been punctuated by spasms of political instability since independence in 1966.
The reform drive was supposed to have been completed by the end of the five-year term of the latest parliament, on 13 July 2022. Parliament tried, without success, to enact the reforms bill before its dissolution. Even frantic and chaotic efforts to pass it at midnight before the parliament dissolved failed.
This, in effect meant the collapse of the reform programme.
The net effect is that elections will be held on the basis of the old constitutional framework. This is the same framework that is to blame for recurrent political instability in the country.
Prime Minister Majoro’s government is the fourth on whose watch the reform process collapsed, despite enormous resources being invested in the initiative. The causes for the collapse are common in all four attempts.
In my view, two key reasons lie behind the failure of political reforms in Lesotho. The first is lack of interest by successive governments. The second is the poor design of the reform processes.
The way in which the latest reform attempts collapsed provides a good example of why Lesotho has struggled to get itself on a new political path. It reflects the deep tensions in the country grounded in the fact that political elites are driven by self-aggrandisement.
After parliament’s term ended without passing the “omnibus bill”, the government came under immense pressure from the Southern African Development Community (SADC), which has been trying to facilitate the reforms, as well as donors and civil society to recall the dissolved parliament to finish the reforms process.
The prime minister, Moeketsi Majoro, then declared a “state of emergency” to create grounds for King Letsie III to recall the parliament. But the premise for the recall – that failure to pass the constitutional amendment bill and the National Assembly Electoral (Amendment) Act constituted a state of emergency – was wrong.
The recalled parliament purportedly passed the bill into law following a chaotic process on the 29 August 2022. But the recall of parliament was challenged in the courts by a journalist and a lawyer. In a landmark decision, both the High Court and the Court of Appeal in separate judgements rightly ruled that the recall of parliament was unconstitutional as there was no state of emergency justifying such recall.
Consequently, all the business it transacted after its lawful dissolution on 13 July 2022, including passing the reforms law, was declared null and void.
Lack of interest in fundamental reforms
Despite their pretensions to support reforms, it is clear that governments in Lesotho are not interested in the fundamental reforms to the structure of government. None wants to let go of the unfettered powers that the prime minister enjoys under the current dispensation.
The current design enables manipulation of other branches and institutions of government by the executive. For instance, the prime minister can prorogue and dissolve parliament based on a whim. This is reflective of the weak checks and balances on the use of executive powers.
The prime minister also enjoys unfettered powers to appoint all the other vital institutions - the judiciary, security agencies, oversight institutions and the civil service.
Successive prime ministers have not hesitated to use these powers to torment political opponents, and enhance their political prospects. The result has been recurring instability.
To curb unfettered executive powers, the now-defunct National Reforms Authority, proposed amendments that provided for checks and balances. But even before the failure to pass the amendments, the government had removed proposals to ensure minimal changes to the status quo.
Political reform processes are generally informed by five principles of constitution-making. These are proper agenda-setting (preparation), awareness and consultation, deliberation, adoption and implementation.
In Lesotho’s case, these phases were not clearly visible in the design of the reform process, hence it met incessant headwinds at every turn until it collapsed.
For instance, there was no proper agenda-setting. Consequently, the reform agenda was not clearly demarcated or agreed on. While there were five broad themes – judiciary, parliament, civil service, media, security and the constitution – the extent to which the reform could go was unclear.
As result, competing political interests were often not moderated so that everyone could have a clear vision of what the new constitution should look like. The government view prevailed, as usual, causing discontent among other players.
Similarly, the role that would be played by citizens in the reforms process has been just as unclear.
Another fault line in the process was that the act that was passed in 2019 to guide the reforms itself created more confusion.
The new law saw the establishment of a multi-stakeholder constituent assembly called the National Reform Authority. But its relationship with parliament remained opaque. Most importantly, the parliament’s traditional legislative authority remained unaffected by it.
Another weakness of the process was the way in which it ran rough shod over the processes for changing the constitution in Lesotho: these are by an ordinary amendment by simple majority, two-thirds in both houses and a referendum.
After the elections the new parliament must pass a new reforms law. Such a law must be based on the principles that have emerged following lessons in the many constitution-making exercises throughout the continent.
The most notable experiences are those in Kenya, South Africa, South Sudan and Zimbabwe. The law must carefully delineate the role of stakeholders such as government, other political players, civil society, experts, and, much more importantly, the public.
A careful design of the process and how various stakeholders participate in the process is the greatest lesson from many constitution-making experiences in Africa.
Inevitably, such a process is bound to reduce the classical powers of parliament. Parliament cannot regard a law passed through such a broad-based consultation, where agreements and compromises have been secured, as an ordinary piece of legislation with which it can do whatever it likes.
By Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of Limpopo