Sadc reforms roadmap

Sadc reforms roadmap

In 2014 Lesotho’s First Coalition Government, which came into power in 2012, began to experience a tension that eventually led the country to a political crisis. SADC appointed the Deputy President of the Republic of South Africa, Mr. Cyril Ramaphosa, as Facilitator. It also deployed the SADC Observer Mission to Lesotho (SOMILES).  At the completion of SOMILES the Facilitator produced a report which proposed Security, Constitutional, Judicial, Parliamentary and Public Service reforms.  These recommendations were subsequently adopted by the SADC Summit and several Double Troika Summits that followed. The Second Coalition Government, borne out of the February 2015 Elections, put together a comprehensive reform agenda at the core of its programme, thereby establishing itself as a reformist government.

Following the unfortunate demise of Brigadier Maaparankoe Mahao on 25th June 2015, the government requested SADC to facilitate the establishment of a Commission of Inquiry into the circumstances surrounding his death.  The Commission made its recommendations. The government accordingly presented its position with regard to the implementation of the recommendations to SADC. In turn SADC urged the government to submit a roadmap on the implementation of the recommendations for consideration during the SADC Summit that was to be held in Swaziland from 30th to 31st August, 2016. The Government of Lesotho has since set up a Cabinet Sub-Committee headed by the Deputy Prime Minister, together with a Committee of Officials, headed by the Government Secretary, to drive the implementation programme.

3.    THE IMPLEMENTATION OF THE REFORM AGENDA

3.1 REVIEW OF THE CONSTITUTION

3.1.1 Rationale
The need to take another look at the Lesotho Constitution of 1993 has been expressed widely by Basotho on radios, newspapers, television and social media. The expression that “Molao oa Motheo o masoba” literally translating to “The Constitution is full of holes” is quite common in Lesotho.
It can safely be said that there is a general consensus about the need to review the current Constitution as it is no longer able to respond to the contemporary political and security challenges that face the country.

At the opening of Parliament on the 8th of May 2015, His Majesty, King Letsie III made a Clarion call for an extensive constitutional review process.
“Dear Members of Parliament and the nation at large, allow me to put before you a special request that as a nation, our constitution needs to be reviewed and strengthened. It is our responsibility to do so for the sake of national peace, security and stability,” he said.
His Majesty repeated this call at Lesotho’s 49th Anniversary of Independence on 2nd October, 2015, in anticipation of Lesotho’s 50th anniversary of independence in 2016.
One of the core purposes of making a new Constitution is to ensure capacity and credibility of the governance institutions and to determine how power and the authority of state should be exercised.

The crafting of a new Constitution, therefore, helps to breathe life into the social and political architecture of the state, and strengthens democratic governance.
It is for this primary reason that all citizens have a sovereign right to take part in the process of constitution making.
The people’s involvement in the process is key because the constitution embodies a social contract that limits the use of power on the part of a legitimately elected government.

3.1.2 Activities to be Implemented

The constitution making process will include the following key activities:

l    Formal launch  of the constitution  making process by The Right Honourable the Prime Minister;
l    Establishment  of a  secretariat,  headed by a Judge of the  High Court, to facilitate the establishment of  the constitution making body;
l    Organising of a stakeholders consultative  conference by the Secretariat;
l    Enacting of legislation to protect the constitution making process by Parliament;
l    Establishment of a constitution making body by the stakeholders;
l    Conducting extensive civic education by the Secretariat and Constitution Making Body;
l    Extensive and all inclusive consultations and validation exercises by the Constitution Making Body;
l    Holding of a referendum by the Independent Electoral Commission.

3.1.3 Progress Made:
In December 2015 Government requested the United Nations Development Programme (UNDP) to provide technical assistance on the constitutional reform process.
A consultant was engaged and a document entitled “Lesotho Constitution Building Process: Ideas and Options Paper” was produced and formally adopted by Cabinet in April 2016.
The paper serves as Government’s Official Working Document for engagement with all stakeholders on all aspects of the Constitutional reform process.
It is based on extensive research from countries such as Kenya, Ghana, Liberia and South Sudan.
It spells out the processes and issues that need to be taken into consideration during the constitution-making exercise.
The document also forms the basis for Government’s Roadmap on Constitution Reform.  It is important to mention that the document was presented to the SADC Secretariat during the last Double Troika Summit held in Gaborone, Botswana, in June 2016.

3.2 SECURITY SECTOR REFORM

3.2.1 Rationale
Security Sector Reform is key to the achievement of lasting peace, democracy and a stable political, security and social environment which are sine qua non to the attainment of sustainable economic growth and development.
Experience has shown that a Security Sector Reform exercise is a long-drawn process that can take from 20 to 50 years. However, in the specific case of Lesotho, there are immediate challenges which emanate from obvious shortcomings in the laws that govern the security sector. These challenges include:

l    Overlapping of mandates and functions of the different security sector agencies;
l    Relations among the different security sector agencies;
l    Relations between the civilian leadership and the leadership of the security sector agencies;
l    Appointment of the leadership of the security sector agencies;
l    Issues of synergy and complementarity among the different security sector agencies.

3.2.2 Activities to be Implemented

Looking at the nature of the security sector reform imperative in the case of Lesotho as indicated above, a decision has been made to divide the process into short-term and long-term activities.

3.2.2.1 Short-term Activities

The short-term activities of the Security Sector Reform will concentrate largely on the review of laws in order to address the immediate challenges identified above. The process will proceed as follows:

1.    Establishment of the Lesotho Security Sector Reform Committee by the security sector agencies;
2.    Development of a proposal for the review of Security Sector laws by the Lesotho Security Sector Reform Committee;
3.    Submission of the proposal to the Lesotho Law Reform Commission by the Security Sector Reform Committee;
4.    Assignment of a Commissioner (a Judge of the High Court) to lead the project by the Law Reform Commission;
5.    Development of an Analytical Report on the laws that need to be reviewed by the Commissioner;
6.    Organising a stakeholders workshop for consensus building facilitated by the Law Reform Commission;
7.    Establishment of a Technical Committee to:
a.    Conduct further research (if necessary)
b.    Produce a report accordingly
c.    Issue drafting instructions
d.    Facilitate the development of a draft bill by Parliamentary Counsel
e.    Facilitate submission of the bill to Cabinet
8.    Presentation of the bill before Parliament by Government.

3.2.2.2 Long-term Activities

The long term Security Sector Reform process will be undertaken in four phases as follows:

a.    Induction: This includes sensitisation and promotion of buy-in by all stakeholders and the nation  at large;
b.    Assessment: This involves extensive research on the security sector in Lesotho, identification of key stakeholders, and identification of all the areas; to be addressed by the Security Sector Reform;
c.    Implementation;
d.    Monitoring & Evaluation.

3.2.3 Progress Made:

At the initiative of The Right Honourable the Prime Minister, SADC facilitated a Security Sector Reform workshop which was held in Maseru, Lesotho, from 26th to 27th July, 2016.
The workshop was facilitated by experts from the SADC Secretariat, African Union Commission and from some SADC Member States. The UNDP provided part of the funding for the workshop.

The overall objective of the workshop was to sensitise key stakeholders in the Kingdom of Lesotho about the need for security reform, and to familiarise them with the concept, content, processes, challenges and opportunities involved in a Security Sector Reform.
The Workshop came up with key recommendations that were subsequently adopted as decisions of the SADC Ministerial Committee of the Organ held in Maputo, Mozambique on 6th August, 2016;

The outcomes of the Security Sector Reform Workshop have laid the foundation for a Security Sector Reform Roadmap.  The Law Reform Commission has been mandated to lead the process for the review and harmonization of security sector laws as a matter of priority.
An assessment of the deficiencies of the existing legal instruments has been conducted within the Security Sector Ministries.

3.3 PARLIAMENTARY REFORMS

3.3.1 Rationale
The country has, in recent years, been plunged into constitutional and political crisis due to deficiencies in the legal, administrative and procedural instruments guiding Parliamentary practices and conventions, with particular reference to, inter alia, the formation, management and termination of coalitions, as well as caretaker governments.
An example is in 2014 when the then Prime Minister prorogued parliament when faced with a vote of no confidence and the prospect of some members of parliament from his political party crossing the floor.   This led to a serious political crisis which culminated in the intervention by SADC.  This also brought out the issue of Parliamentary Autonomy.
It became clear therefore that there was an urgent need to reform parliament in order to enhance its autonomy and effectiveness on the one hand, and to strengthen its legislative and oversight functions, on the other hand.

3.3.2 Activities to be implemented

l    Establishing the Parliamentary Reforms Committee;
l    Conducting Parliamentary Capacity Assessment;
l    Enacting the Parliamentary Administration Act;
l    Establishing the Parliamentary Service Commission;
l    Reviewing the Rules of Procedure of both Houses;
l    Developing Joint Standing Orders;
l    Assessing and reviewing all Parliament related laws;
l    Aligning parliamentary practices to the mixed member proportional system;
l    Regulating  issues of floor crossing and vote of no confidence;

3.3.3 Progress Made:

3.3.3.1 Establishing the Parliamentary Reforms Committee:

l    There are ongoing consultations between the two Houses on finalising the membership and the Terms of Reference for the Committee

3.3.3.2 Enacting the Parliamentary Administration Act:

l    Drafting instructions have been developed and are under consideration and review by Law Office (Parliamentary Counsel).

3.4 JUDICIAL REFORMS

3.4.1 Rationale
The Judiciary of Lesotho, like in any other developing country, has been faced with numerous challenges related to the administration of justice and access to justice itself.
There has been a problem related to backlog of cases in the courts which came as a result of shortage in the number of judges and having only one High Court that sits at the capital, Maseru.   Another challenge has been with regard to the seniority of the Chief Justice versus the President of the Court of Appeal.
The hierarchy of the courts and the issue of the Labour Court that has been treated as a unit of the Ministry of Labour instead of the Judiciary also led to maladministration in the justice system. There has also been a concern by stakeholders that the Judicial Service Commission is not fully representative of all stakeholders that are supposed to play a role in the Commission.  This has led to others questioning the appropriateness and transparency of the appointment process of the judicial officers.

3.4.2 Activities to be implemented

l    Review the composition of the Judicial Service Commission to make it more inclusive and broad based;
l    Enhance provisions that deal with the independence and accountability of the Judiciary;
l    Decentralise the High Court of Lesotho to other regions of the country and annex the Labour Court into the Judiciary;
l    Review  the appointment process of the Chief Justice and President of the Court of Appeal to align it with international best practice;
l    Review the impeachment proceedings to align them with international best practice.

3.4.3 Progress Made:

l    A Judicial Reform Committee made up of three Judges of the High Court has been set up to drive the judicial reform.
l    The sections to be reviewed have been identified and research is ongoing to review the laws.

3.5 PUBLIC SERVICE REFORM

3.5.1 Rationale
The current laws governing the Public Service are outdated and do not respond to the challenges of the modern public service and the changing demands of the citizens for services.
There is therefore a need for an overhaul of the Public Service legal framework to bring it into line with international best practice and to make it more responsive to the needs of Basotho for services.

The public services are inaccessible to a large percentage of the populace as most services are centralized, and people have to travel long distances.
Consequently they incur heavy expenses in order to access basic services. This further creates an unnecessary economic burden on such citizens.
Furthermore, the uncontrolled bulging of the workforce has led to a huge wage bill which has created a heavy burden on the fiscus. This has had a limiting effect on financing of capital projects, which are crucial for economic growth and development.

3.5.2 Activities to be Implemented

l    Professionalising the Public Service through the review and harmonisation of the legal and administrative framework.
l    Mainstreaming the wage bill
l    Harmonising the industrial relations climate
l    Enhance performance management systems and develop monitoring and evaluation framework
l    Decentralising the Public Service.

3.5.3 Progress Made:
The Lesotho Public Service Modernisation project, which is supported by the World Bank, was launched in March and will cover a biometric census among others which will enhance planning and fiscal management which are crucial for a comprehensive Public Service reform.
The automation of the public service salaries was completed in July 2016.
A Cabinet Sub-Committee on Decentralisation has been established and operationalised.
There are ongoing discussions with the Commonwealth with regard to technical assistance.

4.    IMPLEMENTATION OF THE RECOMMENDATIONS OF THE PHUMAPHI COMMISSION

4.1 Rationale
While most of the SADC recommendations will be implemented through the reform programme, there are other decisions which will be addressed administratively and through other means.  These include the following recommendations of the SADC Commission of inquiry headed by Justice Phumaphi:
1.    Granting of Amnesty for LDF officers suspected of mutiny
2.    Suspension of LDF officers implicated in crimes
3.    Investigations into the death of Brigadier Mahao
4.    Removal of Lieutenant General Kamoli as Commander of the LDF

With regard to the granting of amnesty, Government prefers a general amnesty as opposed to a selective exercise.

4.2 Activities to be undertaken

l    Enactment of an amnesty law;

l    Finalisation of a mutually acceptable solution for the exit of Lieutenant General Kamoli.

4.3 Progress Made:

l    The drafting of the amnesty legislation has commenced;

l    Arrangements for the exit of Lieutenant General Kamoli are at an advanced stage.

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