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Is the Council of State a ‘white elephant’?

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Recent developments in the country have prompted serious debate amongst politicians, legal scholars and ordinary citizens alike over the role and powers of the Council of State.
I shall strive to argue that the relevant constitutional organ is nothing but a white elephant especially in a setting where its role is that of ‘advising’ a constitutional monarch.
I shall deliberately avoid a mundane approach of engaging in political debates nor attempt to act like a tony intellectual who is well-versed in the dynamics of constitutional law jurisprudence and its dynamics.

Mine will be a limited attempt to present practical challenges which are presented by a body which is modelled around the Westminster type of governance model in a tiny African country like Lesotho whose evolution of institutional democracy is in its somewhat nascent stages as compared to Britain.
The turning point in the debate centres around the powers of His Majesty the King vis-à-vis the Prime Minister.

The country’s constitution is modelled in such a manner that the King is relegated to a ceremonial figurehead with no real and substantial executive powers.
The large proportion of constitutional powers if not all are vested in the Prime Minister and there is a very controversial provision in the constitution which provides that in the event of the King declining to act in accordance with the advice of the Prime Minister, the latter is at large to act on his own motion and such an act would be deemed to be that of the Head of State.

Perhaps even more poignantly, there is yet another constitutional provision which provides that if the King were required to act on the advice of the Council of State and fails to do so, the relevant organ may itself do the act and that act would be deemed to have been done by the King.

This latter constitutional provision presents a complex legal problem: Can the Council of State overrule the advice rendered to the King by the Prime Minister when the latter is himself a member of the relevant body and alternate chairperson in the absence of the King?

The recent developments in Lesotho’s constitutional law jurisprudence yielded a very sensitive but very relevant question which had been indirectly canvassed by politicians of whether Lesotho still needs to have a monarchy and whether it would not be in the best interests of the country if Lesotho transitions into a republic with the eventual abolishment of the institution of the monarchy and the entire royal aristocracy.

This would be a convenient solution for the politicians because theirs is a perception which can be safely categorised as “self-entitlement” to the extent that they attach a great value to the ballots and their electivity.

Their view is that a legitimate government derives from the mandate given by the electorate and they contrast their mandate to that of the monarchy which asserts itself from traditional forms of institutional power which manifests itself by right of birth.

In essence, the real fight has always been about the respective institutions’ contest for power.
There are those who favour the view that the Head of State should be one who is elected by the people not the one who assumes the reins by traditional institutions of royal aristocracy which transitions and evolves by virtue of birth.

One of the most powerful factors that count as a justification for the retention of the royal aristocracy was a somewhat ideological and romantic view that Basotho genuinely love the traditional institution of royal aristocracy and would resist any political revolution that compromises the role of the King and or the royal aristocracy as a whole.
Whether or not this is true, is something that can only be assessed through scientific evidence perhaps by way of a referendum.

But even then the real issue that needs to be debated and of which there has to be an engagement is whether the political elites who directly challenge the authority are doing that as an end of addressing an issue of public discourse or merely pushing self-serving ends.

Political power is the prime motivation behind the fragile relationship between political elites and the monarchy and Lesotho’s history bears witness to this factor.
With all those observations and daunting questions in mind I should be quick to throw the gauntlet by suggesting that the Council of State is one of the few constitutional institutions that are institutionally dominated by lawyers with a total of no less than four law graduates making up this entity.

It needs to be remembered that the chairperson of the Council of State, the King himself, has legal qualifications and he is flanked by the Attorney General, the Law Society candidate, the two puisne judges and by sheer coincidence, the current speaker of the National Assembly who is also a legally qualified public servant.

In hindsight, it is perhaps enlightening to note that the recent decision of the High Court sitting as a constitutional panel was a milestone moment in Lesotho’s constitutional law jurisprudence because it sought to define the limits of the exercise of the Speaker’s powers as an administrative head of the National Assembly.

Whether these “lawyers” have had a chance to realise and perhaps analyse the limits of power of this institution vis-à-vis those of the executive is a question that can best be answered by themselves in their respective individual capacities.

The Attorney General is evidently the most powerful member of this institution in his own right because of all the members of the Council of State he is the only one who sits in all three branches of government unhindered and sanctioned by the law.

He sits in cabinet meetings and effectively becomes privy to the formal discourses of the executive.
He also plays an instrumental role in the Judicial Services Commission (yet another very important constitutional institution) and plays a part in the appointment of judicial officers and he is also an ex officio member of the legislature.

The attorney general’s office has the sanction of the law and the office bearer of such a post has the potential to navigate between the institutions dominated by legal professionals and those dominated by politicians a very rare scenario that consolidates his personal bureaucratic power and the institutional power of the office of Attorney General.

How else in this constitutional setting can the Attorney General be enjoined to give and render transparent and independent professional legal advice when he is circumstantially inclined to lend an ear to policy considerations spearheaded by the executive (politicians) before advising the Head of State — His Majesty the King?

Of what value is the engagement of the Law Society in the political affairs of the state when the enabling Act that establishes it has the prime objective of exclusively serving the purpose of professional training and development of lawyers in private practice?

Is it not compromising the professional mandate of the organization by portraying the relevant member appointed by the Law Society as a political activist than a legal professional?
Yet another skewed aspect is the fact that two puisne judges form part of the Council of State — one may otherwise suggest that it is clearly against the spirit of separation of powers if sitting judges can engage with politicians in the Council of State.

What would be the implications of their advice that runs against the desired end of the Prime Minister? Any opposition to the policy suggested by the government could very well be seen to be an opposition not only in the literal sense but also in the institutional sense.

I am therefore inclined to suggest that appointment and engagement of sitting judges in the Council of State was clearly not a wise decision — the inverse would only be beneficial if it were “retired” judges.

The engagement of sitting judges in a politically charged institution like the Council of State compromises the institution of the judiciary.
In order to address the scope of this institution’s power one would have to evaluate the manner in which its “advice” is rendered to the King and whether this “advice” can overshadow that of the Prime Minister in his capacity as head of government. Quite ironically, the Council of State does not have any rules of engagement or formal guidelines which prescribe the procedure to be followed in the arrival of what constitutes ‘advice’ and this is one of the most glaring features of most institutions which are direct creatures of the constitution.

The impeachment tribunal (the convening of which the Prime Minister plays an instrumental role) for removal of judges is but one example. Is it practically feasible for the Prime Minister to render any ‘advice’ which is in conflict with the majority of the membership of Council of State? Can government bureaucrats who are constituents of the institution motivate an advice that runs contrary to the government’s policy?

To put it bluntly, can the commander of the Lesotho Defence Force and the Commissioner of Police in their respective capacities as members directly challenge the stance held by the Prime Minister? What would be the practical implications of that endeavour?

These questions are being raised to illustrate that the advice rendered by the Council of State is riddled with some practical bottlenecks. Recent developments on the political stage have clearly magnified its practical shortcomings. The politicians seemed to have harboured the view that the lobbying of some members of the Council of State to motivate the desired end of a particular political faction would be beneficial but this approach was clearly ill-conceived because the decision-making process of the Council of State is not done by way of votes or through the conventional democratic process – it is done by consensus and even then the discretion to take that advice lies in the chairperson (the King).

And even then, his exercise of discretion in the evaluation of what that advice amounts to has to be weighed against him being a constitutional monarch constrained by the constitutional limits of his powers particularly where those powers are at odds with the incumbent Prime Minister.

Yet another feature which perhaps requires interrogation has to do with the criteria employed in the appointment of other ordinary members. The appointment of other members with the exception of those who are products of formal institutions is perhaps purely the discretion of the chairman of the Council of State. But even then the criteria and or qualifications (if any) that one should meet are not spelt out.

I have sought to clearly motivate my view that the Council of State is a white elephant and I shall ultimately conclude that one of the issues that requires careful interrogation and debate is not necessarily that of the limitation of the power of the Prime Minister but also that of whether the institution of the monarchy and the royal aristocracy can be modelled absent the institution of council of state.

But even more importantly, the debate of the role of the monarchy and whether it still has a place in our democratic setting has to be interrogated irrespective of how sensitive it may be. On the same score, the constitutional powers of an incumbent Prime Minister also need to be subjected to scrutiny as a measure of control in the exercise of the head of government’s powers.

I am further forced to conclude that any constitutional reforms exclusively narrowed down to institutional reforms alone will not efficiently address the core issues. The integrity and dignity of the constituents of public institutions and or office bearers is also a factor that both electorates and policy-makers should evaluate in their assessment of a better constitutional model to follow.

*Monaheng Rasekoai is a former member of the Council of State and ex-president of the Law Society of Lesotho

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We need a coordinated approach on youth challenges

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For a number of good reasons, all of us are concerned about problems that face Lesotho’s young people, particularly youth unemployment, and the increasing tendency towards anti-social behaviour among sections of Lesotho youth including their increasing admiration for criminality.

Not only do members of such groups admire criminality and actually commit crimes but they commit crimes without much care as to the harm and other costs that their actions inflict on immediate victims and on society-at-large.

Evidence of public concern about these problems includes the fact that within society individuals, groups and public and private institutions have all expressed concerns over problems facing the youth, with some of these parties making attempts to come up with ideas and measures to assist.

However, a number of problems seem to be emerging on, at least, three fronts. Firstly, a seeming lack of coordination in addressing problems that face young people. Secondly, lack of clarity on questions of whether (a) parties that seek to assist are basing their interventions on credibly identified sources of problems that face young people; and (b) whether any credible assessments are made to ensure that interventions such parties are proposing and implementing have potential to solve problems that face Lesotho’s young people.

There are many examples of what may seem to us, members of the general public, to be lack of coordination in approaches to solve problems facing young people. One such example may be sufficient. On January 8, 2024, Lesotho TV broadcast a statement in which the Lesotho Defence Force (LDF) authorities announced establishment of some army facility where Basotho young people would be taught some values, including patriotism.

The very next day, on January 9, 2024, Lesotho TV broadcast another statement, this time by the Lesotho Mounted Police Service (LMPS) authorities, announcing the LMPS’s plan to establish a police facility at which young people would be taught anti-crime and other values. In their essence, the LMPS’s plan sounded not totally dissimilar to LDF’s.
Apart from the LDF and LMPS’s plans for Lesotho’s youth, there are also public and private sector initiatives to nurture and support entrepreneurial talents of Lesotho’s youth with a view, among others, to fight youth unemployment and develop the country’s private sector.

Politicians have also been seen to sponsor football games for young people in their constituencies with a view, they say, to keep young people from crime and narcotics. These events cannot be criticised too much but given that they are one, or two-day events that take place during specific times, they look more like publicity stunts.

National sports federations are now complaining that politicians who sponsor these events put too much stress on sports as a means to fight crime. What federations want is that, if politicians want to help, they should stress the importance of sports as careers, and sponsor young people to develop their sporting talents accordingly.

Amidst expressions of concerns and various parties’ attempts to address problems facing Lesotho youth, public authorities that we have not heard from, or from who we do not hear enough, are those charged with responsibilities over precisely problems facing young people; that is, authorities at the Ministry of Youth.

Admittedly, we do not know if the initiatives of the LDF, LMPS, and others are carried out in consultation with or with the blessing of the Ministry of Youth.

The worry ought to be not only whether interventions of the LDF, LMPS, and others have the blessings of the Ministry of Youth. Instead, the worry should extend to the question of whether the Ministry has any national plan to address problems facing young people. And, if such a plan exists, we would expect that it identifies the LDF and LMPS as places where young place can be coached; and initiatives of these and other institutions would align with such a plan.

Without an identification of the army and the police as implementing agencies of the Ministry’s plan, and without the army and police’s initiatives alignment with the Ministry’s plan, at least two things are likely to result: duplication of effort — as seems to be the case with the LDF and LPMS plans; or, at worst, LDF and LMPS plans might contradict and undermine national plans entrusted to the Ministry of Youth.

In the worst case scenario that a national plan does not exist, we face the danger that anybody wishing to address problems facing Lesotho’s young people can do so, basing herself, or himself on a personal or group perception, and implementing plans and solutions based on such perception.

As in the case of too many people stirring the same cooking pot without coordination, undesirable consequences can be expected from a situation where just about anybody can apply a solution to a public problem.

As hinted above, a good national plan aimed at addressing problems that face Lesotho’s young people would have two characteristics, at least. First, it would be based on our assertion of the kind of society we want to be; an investigation of problems that stand in the way of achieving such a society; how such problems can be overcome, say, through school curricula; and how, in general, from Early Childhood Care & Development (ECCD), young people can be brought up and socialised in ways that ensure they will be useful members of a society we wish to be.

Any action that is not based on an investigation of the problems that stand in the way of achieving a society we want to be has little chances of success. Such action would be based on some understanding that the young who are anti-social, unpatriotic and criminals are naturally bad people.

It is, of course, not as simple as that. For example, one possible explanation for the absence of patriotism among young people may have something to do with socio-economic inequality in Lesotho: those who are closed out of, and excluded from, benefiting from Lesotho’s wealth and power cannot be expected to be patriots.

A second characteristic of a plan aimed at addressing problems that face Lesotho’s young people is that, such a plan should identify and/or establish institutions designed — and with appropriate skills — to implement ideas and proposals that come out of credible investigations.

It is unclear whether the LDF and LMPS plans have resulted from something like considerations suggested above. While it is admitted that these institutions’ initiatives are limited to addressing problems of lack of patriotism and criminality among the young people, one clear problem with their plans and solutions is that, it might be the case that they are catching young people a little late, when schooling and general socialisation have already entrenched anti-social values that we see among sections of young people; namely, individualism and the inability to think of others.

In one word, these institutions catch these young people when tendencies towards criminality, anti-social behaviour, and lack of patriotism might have already hardened.
Perhaps the biggest hope we should have is that the army and the police will have full complement of resources necessary for providing full and wholesome mentoring to young people who undergo army and police mentoring.

Short of adequate resources necessary for achieving what the army and the police have in mind, we might end up with cohorts of young people with a faulty army and police culture that may come back to haunt us. Inserting a faulty army culture among a section of young people brought us bitter results in the 1970s and 1980s that should not be repeated.

To conclude, no one can argue against all of us being concerned with problems of youth unemployment; increasing tendencies of young people’s admiration of criminality and their participation in crime. And no one can argue against all of us coming up with ideas and proposals of how to address these problems.

However, our concerns and proposals ought to be based on:
a nationally-agreed assertion of society we want to be;
a credible investigation of difficulties that stand in the way of us becoming society we want to be;

and coordination of proposals and ideas aimed at becoming society we want to be.

As with other specific instances of socio-economic development in Lesotho, problems facing the country’s young people cry out for the long-neglected establishment of the National Planning Board, as prescribed in Section 105 of the Constitution of Lesotho.

Prof Motlatsi Thabane

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Call that a muffin?

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In Oscar Wilde’s short story “The Canterville Ghost” (1887) one of the characters says about the British, “We have everything in common with America nowadays except, of course, language.” Between American English and British English there are many, many differences. Which is not to say that either American or British English are standardised; there are multiple varieties within each. As a south-western Brit I can find it difficult to fully understand what someone from Liverpool or Newcastle is saying.

I remember one year during the NUL’s International Theatre for Development project we had a student from the islands of Scotland. She was brilliant and hard-working and full of good ideas — if only one could understand the ideas when she introduced them. The NUL students grouped together and asked me: “Chris, can you translate what Kirsty is saying for us?” and I replied: “I’m as lost as you are.”

Between American and British English it’s not just a matter of pronunciation but also of vocabulary (I’ll be coming to muffins — see the title of this piece — in a while) and spelling.
In the biographical film Prick Up Your Ears British, dramatist Joe Orton shares a room with Ken Halliwell and they decide to write a novel together. Ken asks Joe “can you spell?” and Joe replies “yes, but not accurately.”

This is hardly a surprise, given that he’s a Brit. The American spelling system is far more regular and rational than the British. (Readers with laptops will have noticed that your spell-check gives the option of British or American spelling, but that doesn’t help you as in Lesotho the British system is used, so for the time being you’re stuck with it).

I mean, what can you say about a spelling system where “plough” rhymes with “now”, but “tough” rhymes with “stuff”– and “now” doesn’t rhyme with “low.” Yipes (as the Americans say). When I was lecturing in Lesotho and in Nigeria and marking assignments I was always very lenient over spelling, because I know what a mountain it is to climb (the latter word rhyming with “time”, of course).

Then there is the matter of vocabulary or denotation (a term I hope readers remember from a few weeks back). There are many examples of things that are denoted by different words in British and American English: lift / elevator; pavement / sidewalk; windscreen / windshield; petrol / gas; cinema / movie theater (and look at the American spelling of (Brit) “theatre”– a lot easier). And some of these reflect our different histories.

For example, there’s a vegetable, a kind of small marrow, the British call it a courgette (one of my favourite vegetables, in case any of you are planning to invite me for dinner). That’s a word that British English has borrowed directly from French — that is, a loan word (I’m not sure we plan to give it back).

The Americans on the other hand call it a zucchini, a loan word from Italian, which I guess reflects the size and influence of the Italian community in the USA. (Speaking of vegetables, I can’t give you an explanation for why the Brits call an aubergine an aubergine — another loan word from French — but the Americans call it an egg-plant).

Next week I’ll get around to muffins — a sore point — and I’ll move on to differences between English and French and between Sesotho and Setswana. Bet you can’t wait.

Chris Dunton is a former Professor of English and Dean of Humanities at the National University of Lesotho.

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Insight

Lessons from Israel: Part 3

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I shall round off my account of my 1995 trip to Israel by putting on my tour guide cap. Staying in Tel Aviv, most days were fully taken up by the conference, which was my reason for being there. Tel Aviv in July is scorchingly hot, so there were walks along the beach only before breakfast and after sunset. I did take a little time off to go with South African author Stephen Gray to an art gallery that had a painting he wanted to see (a portrait by Modigliani of Beatrice Hastings, whose biography Stephen was then writing).

I wasn’t especially keen on the hotel restaurant, where dinner comprised meat served by the ton (surprisingly little fish, given that we were on the coast. By contrast, I had always been surprised and happy that Maseru restaurants are so good on fish, despite the fact that Lesotho isn’t exactly maritime). But I discovered a little Russian Jewish restaurant that offered Beluga caviar at an amazingly cheap price. I suspect it had fallen off the back of a lorry, as we say in the UK — i.e. that it was contraband, acquired illegally. I just blinked innocently and enjoyed myself. I can’t think of a more delicious way of starting a meal than with caviar, freshly-made blinis and a large glass of deeply chilled Wyberowa vodka — no ice, please. (I only say all this to show you what a very cosmopolitan chap I am).

The conference ran to a packed schedule and we worked hard (no, really). Half-way through we were given a day off and taken to Jerusalem. On arrival I teamed up with an old Nigerian friend and a friend of his from Senegal and we took ourselves first to the Dome of the Rock, the main mosque, which is splendid and radiant (wow, the mosaics!) Then we saw the Wailing Wall.

Then we trudged up the Via Dolorosa to the Church of the Holy Sepulchre. The Via marks the route along which Christ was forced to carry his cross on the way to his crucifixion (dolorosa means something like “of miseries”). I had expected it to be lined with sculptures showing the Stations of the Cross (rather like the lovely ones at Fatima, near Ramabanta).

Instead it was one tourist gift shop after another. Here I came across one of the most repugnant things I’ve seen in my life. Proudly displayed for sale, a wall clock with the face adorned with the image of the head of Christ, the two clock hands protruding from his nose.

At the top of the Via Dolorosa, the fourth century Church of the Holy Sepulchre, the holiest site in the world for Christians, which is breathtakingly beautiful. The interior is (not visibly) divided into sections, the upkeep of each of which is the responsibility of one of the major denominations: Roman Catholic, Anglican, Methodist, Greek Orthodox, Egyptian Coptic, and so on. I had had the impression this was an arrangement worked out under the colonial regime of British Palestine, but Google tells me it dates back to the Status Quo of 1757.

My companions had done their homework and suggested we head first for the roof, which had been allocated to the Ethiopian Orthodox Church (dare one possibly suggest a tinge of racism in this marginalisation?). There we found a cluster of monkish cells, each inhabited by an elderly Ethiopian monk, at least two of whom spoke English or French. They were delighted to see us, and utterly sweet, hospitable, and in their accounts of their pastoral work spellbinding.

To be concluded

Chris Dunton

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