MASERU – WEDNESDAY July 13 and the clock is ticking towards midnight. Apart from small mobs of skimpily dressed ladies of the night basking in blazing paper fires in corners, the streets of Maseru are empty.

But the parliament building’s lights are glowing and its parking bays crowded with cars. Panic seems to have set in among the MPs inside.

In a nondescript building across town, Senators are also having their moment of anxiety. Rarely had Lesotho’s MPs and Senators burned the midnight oil on official duty.

Both are racing to pass constitutional amendments for the national reforms.

Anyone landing in Lesotho from another planet would have been forgiven for thinking that the bills whose import and wording both houses were haggling over had been drafted a week earlier.

The reality was that those reforms had been in the making for the past six years and the bills had been drafted months earlier.

Yet the lawmakers were now counting minutes to push the bills through before their five-year tenure ended.

It is hard to suppress the feeling that the MPs and Senators did not know that they were attempting to achieve the impossible. As hours dissolved into minutes, the Senators would approve clauses and immediately send them via email to the MPs for passing.

The last clauses arrived at the parliament 15 minutes before midnight to trigger a mad race. With five minutes to go, the Speaker announced that they had run out of time because the king had dissolved parliament.

It was an anti-climax of epic proportions. Years of hard work, hundreds of miles travelled and millions of maloti spent had come to nothing.

There was an eerie silence as MPs streamed out of parliament after midnight.

They failed to pass the reforms they had promised the people and the international community. The same reforms that years earlier they had vowed to pass come rain or sunshine.

These were the same politicians who months earlier had signed a commitment to “remove all obstacles and impediments that have potential to derail and delay the passing of the 11th Amendment of the Constitution Bill”.

Predictably, the morning after came with excuses, blame-shifting, regret and a palpable fear of the implications of their botched job.

It however was telling that the government sounded more fearful of the international community than Basotho, the very people they were supposed to serve and had given them the mandate.

There was no apology from either the government or the leaders of opposition parties.

The reaction from SADC, which had chaperoned Lesotho’s reforms in cash and kind for more than half a decade, was instant and furious.

The Lesotho delegation that sheepishly walked into the conference room at the SADC meeting in Pretoria a few days later was tongue-lashed by the regional colleagues who threatened sanctions and other censures if the reforms were not passed.

The message was clear: SADC had run out of patience with Lesotho. Pressure was also mounting from the EU, the United States, the United Nations, and the African Union.

The delegation promised that Lesotho would clean the mess. The government was cornered.

But how the government set out to resolve the conundrum would trigger events that would lead to the same conundrum they wanted to avoid.

They used the constitution’s state of emergency clause to recall parliament so they would pass the amendments.

They were on a slippery slope because even as they pondered the state of emergency it was clear this was a desperate measure to get the reforms across the line and appease the international community.

There was an overwhelming consensus in the legal fraternity that there was no legal justification to declare a state of emergency to pass the amendments.

Lesotho’s generally porous constitution was airtight on what constitutes a state of emergency.

Even Law Minister Lekhetho Rakuoane did not sound convinced that it was legally possible to sneak in the reforms via the state of emergency.

In interviews with this newspaper and radio stations, Rakuoane, a lawyer himself, sounded noncommittal as if trying to avoid being blamed for pointing that the government was taking a wrong legal direction.

“We are now in unchartered waters,” he said after timidly hinting at the state of emergency as “our last hope”.

He was probably aware that a declaration of a state of emergency would not pass the constitutional test but still had to be done for political reasons to save face and pacify the clamouring international community.

The members of the Council of State perhaps had the same feeling as they trooped into their meeting to discuss the state of emergency.

The Law Society president, Tekane Maqakachane, gave the council members a mini constitutional law lecture as he forcefully argued against the state of emergency.

Advocate Maqakachane had earlier told thepost that there was ‘absolutely no loophole in the constitution to justify a state of emergency”.

“It’s legally impossible,” he said.

It is inconceivable that the members did not understand that they were about to molest the constitution to achieve a political goal.

You did not need to be a legal expert to understand the constitution’s unambiguous clause about the conditions for a declaration of a state of emergency.

Even those who had not read the clause had probably heard lawyers speaking in the media about the impossibility of massaging the constitution on that issue.

There was neither a war nor a natural disaster. No event imperilled lives and the welfare of the country.

In the end, the council’s decision had nothing to do with legal considerations but the politics of the moment. They gave Prime Minister Moeketsi Majoro what he wanted and he gladly took it.

He was so sure that the council would bend to political will that he told SADC heads of state at a summit in the Democratic Republic of Congo that Lesotho was on course to pass the reforms.

A member of the council would later tell thepost that they understood that what they were doing was unconstitutional but wanted to “kick the problem back to the politicians who had caused it in the first place”.

“He (Majoro) wanted a rubber stamp and we gave it to him. We knew he would run into problems sooner rather than later. I think government lawyers had also told him that problems were coming,” he said.

For a moment it looked as if the government had dodged the bullet. The parliament was recalled and it passed the amendments.

But it wasn’t long before the plan started unravelling. Journalist Kananelo Boloetsi and lawyer Lintle Tuke filed an urgent court application to have the state of emergency declared illegal and the laws subsequently signed off by the king nullified. The writing was on the wall.

The import of the constitutional court’s judgement was to nullify the laws and constitutional amendments the King had signed off for the implementation of the reforms. Its impact was beyond killing the reforms.

The court had opened the floodgates for anyone to challenge a government decision based on public interest. In other words, nearly every citizen had the legal right to sue the government even if they were not directly affected by its actions.

You did not need to show the court a bleeding or festering wound to prove that you had the right to bring a case against the government or a public institution. All you needed was to prove that your case was in the public interest.

The Court of Appeal endorsed that judgement this week when it dismissed the government’s appeal with costs. The reforms are back to square one.

Where did it go wrong?

It would be naïve to start an inquest into the death of the reforms from the point when the parliament failed to pass the amendments. The constitutional court’s ruling might have hit the final nail into the reforms coffin but it wasn’t the disease that killed the reforms.

It is a time-honoured fact that politicians never legislate or reform themselves out of power or trim or dilute their powers. The delays that dogged the reforms were therefore not out of the politicians’ respect for procedures but a strategy.
Constitutional law professor Hoolo ‘Nyane says there was a method in the way the politicians spent months quarrelling over the reforms.

“It was clear that most did not want the fundamental changes that were going to be ushered by the amendments,” Professor ‘Nyane says.

He says a particularly sore point for the politicians, especially those with the potential to be in government, was the proposal in the initial Bill to reduce or dilute the prime minister’s power to appoint senior government officials, senior diplomats, judges and security agency bosses.

Professor ‘Nyane says politicians initially agreed to implement the reforms to appease the international community because they did not think they would go as far as gnawing on their executive powers.

He notes that nearly all the clauses that eventually became contentious had something to do with the power of certain offices or the central government.

“Instead of being a national and technical process, the reforms became a subject of turf wars and power contestations.”

“Right from the appointment of the National Reforms Authority (NRA) it was clear that politicians were trying to carve out their spheres of influence and drive the process to achieve their own agenda.”

Professor ‘Nyane has first-hand knowledge of the internal battles in the NRA and the politicians’ muddling in the process because he was one of the experts that participated in drafting the reforms. He understood how the prime minister’s power was one of the main sources of the perennial political instability that the reforms were meant to nip in the bud.

It was because of the abuse of the prime minister’s powers that two army commanders were assassinated months apart. The same can be said of the chaos in the judiciary and the police.
Professor ‘Nyane is of the view from the people that were clear that the prime minister’s powers should be limited.

He however says he watched in horror as politicians in the NRA argued over technical issues beyond their knowledge. Others, he says, did not hide their loathing for certain clauses and openly complained that they took power from certain offices and the central government.

“In the end, it did not matter what the people wanted in the reforms because the politicians had so many vested interests.”

This explains the brouhaha that ensued after the initial Bill was tabled in parliament. MPs griped that those in the NRA had sneaked in some clauses to favour them. That is to say, the NRA had misrepresented the people’s views. One MP told thepost that they will not allow the NRA to dictate what the parliament should do.

“They are trying to make a lame duck of a prime minister by running the country through commissions. The Bill had commissions for this and that as if the government should always defer to some parallel authorities when it makes executive decisions,” said the MP.

“We are the lawmakers here.”

His sentiments came just as the chaos over which Bill represented the people’s views was starting. It, therefore, did not come as a surprise to people like Professor ‘Nyane when the Bill that parliament submitted to the Senate did not have the initial clauses limiting the prime minister’s powers.

Deputy Prime Minister Mathibeli Mokhothu would later come out during a parliamentary debate to say he was against those clauses. Mokhothu said the government “must always have power through the prime minister”. “The day we have weakened that office would be the day we would have killed the government, it won’t move,” Mokhothu said.

“You cannot reform by killing one of those sectors which are being reformed,” he said.

He said politicians promise to eradicate crimes through the institutions “therefore it would not be right to deprive the prime minister’s office of such powers”.

“There is a spirit by some people to weaken the prime minister’s office. There would be no reason for the parties to campaign if the prime minister does not have powers,” he said.

Mokhothu was therefore speaking for many other politicians when he stood in parliament to protest against the clauses that clipped the prime minister’s wings.

The only difference with other politicians is that he had the guts to speak openly about it. It is instructive that none of his fellow political leaders challenged his position on those clauses.

The government’s refusal to renew the NRA’s terms was probably one of the most visible signs that the reforms were headed for a storm instigated by politicians.

Once the NRA was out of the way, the politicians could dismember the Bill that was a function of the views of the people to suit their ends.

The prevalent excuse among the politicians was that parliament had the final say on what becomes law. This was despite that the Bill that they were discussing represented the wishes of the people. Those clauses were not mere suggestions but instructions from the people about the nature of the reforms they wanted.

As Advocate Maqakachane said this week: “That is what is meant by ‘The Lesotho we want’ slogan of the reforms (See Advocate Maqakachane’s article on Insight 2-3).

Having lost the legitimacy that came with the NRA, the members of the authority resorted to guerrilla tactics. They lobbied Senators to reject the parliament’s Bill and restore the clauses in the initial Bill.

Their influence was clear during the Senate’s debate on July 13. The Senators wanted to reinstate the clauses that parliament had dismembered from the initial Bill. The parliament, on the other hand wanted to keep the Bill it had submitted to the Senate.

“What is clear is that many politicians never wanted these reforms from the start. They might have agreed to go ahead with the process but that doesn’t mean their hearts were in it,” Professor ‘Nyane says.

Whose victory is it?

Given the way that politicians delayed the reforms and then fought against some clauses, very few of them may be shedding tears over the government’s defeat in the courts. As Tuke and Boloetsi basked in the glory of their victory some politicians could have been jumping for joy. The two young men might not have set out to please the politicians but they did.

Their interests coincided with those of politicians bent on killing the reforms. Now that the courts have reversed the amendments, the international community cannot insist on the reforms being passed before the elections. That is practically impossible.

The government can go back to SADC to report that their hands are now tied because the highest court in the land has blocked the amendments. The can has been kicked down the road. Professor ‘Nyane says politicians are the ultimate winners of the chaos.

“They have always liked the status quo and they get to keep it for now.”

Basotho have to wait to fight another day for the Lesotho they want.

Staff Reporter