By: Mpho Shelile

It was said that the Reforms Process was botched, last week at a seminar held by Transformation Resource Centre (TRC) on the 30th November, the invalidation of the Court’s 10th Amendment to the Constitution means that reform-driven legislation contained in the amendment falls off and may only be resuscitated through a new process.

Basotho’s expectations were extremely high and the new coalition government was expected to deliver tangible results fast, some of them within the first 100 days. However expects and legal practitioners from Lesotho and Canada said the only way for reforms to work was to come up with a new strategy because failure to do so would only lead to more failed reforms 

 In his remarks Chief Justice Sakoane Sakoane indicated that the process must be well thought out, led by experts, and be the will of Basotho, as contained in the Plenary II report. He made the remarks at a Constitutional Reforms Symposium organized by Human Rights Organisation Transformation Resource Centre (TRC) in Maseru on Thursday this week.

In his remarks about the reform process, the top judge said the will of Basotho as contained in Plenary II could not be covered in the 10th amendment to the Constitution given their magnitude.

“I do not want us to talk about something dead; I want us to speak on how we move forward from here. Looking at what Basotho said they want as per Plenary II, can you pass those in an omnibus bill or a new Constitution?”

He added “The problem here is this process is driven by givers that is the main problem. We need to put Basotho first because they did not elect us to listen to outsiders but to listen to them and make sure to answer their mandate, but I know the preludes of many constitutions say, We the People, this is the only law created by the people and should reflect their wishes.”

The symposium was aimed at mapping a way forward on the reform process, following the Appeal Court’s judgment that blocked the 11th Parliament from resuscitating the Omnibus bill at the stage it was when the 10th Parliament was dissolved. Chief Justice Sakoane added that it is through listening to the needs of Basotho that the reforms will become a success.

Justice Sakoane also reflected on the composition of the National Reforms Authority (NRA) and said it was flawed in that it was politically dominated.

“The membership of the NRA was politically dominated; politicians are politicians and will always behave like politicians and maximize political power.”

There were misguided ideas that came out of the NRA, according to Justice Sakoane, and they polluted the whole process. He said they were many but included resolutions such as rape and murder suspects not being granted bail. “Experts would have been able to see that it is against a bill of rights to deny suspects bail.”

Canadian law professor, Richard Albert addressed the problem of constitutional replacement by constitutional amendment and warned that there are illegitimate and unconstitutional ways to reform a constitution.

The dismemberments, he said, are big changes to the constitution, and if improperly done, courts are never reluctant to invalidate constitutional reforms permitted.

Prof. Albert said an amendment serves only four purposes: to elaborate, correct, reform, and restore, and that if an amendment goes beyond the four purposes, it could be dismembered.

Failure to draw a distinction between a constitutional amendment and a dismemberment often opens floodgates of litigation, and courts in many instances invalidate the whole constitutional reform. Law professor and constitutional law expert, Professor Hoolo Nyane, said the court’s nullification of the 10th amendment to the Constitution is an opportunity for Lesotho to consider writing a new constitution altogether.

Prof. Nyane argues that Lesotho’s Constitution is not only old but bad, saying the two-time invalidation of the Omnibus Bill by the Constitutional Court and the Appeal Court was an opportunity to reflect on the reform process, which he believes was flawed.

“We had an opportunity the first time the 10th Amendment was invalidated to correct the procedure; apart from the procedure, the contents of the amendment were also problematic. I thought the court’s invalidation of the amendment was a blessing, but now the current Parliament also wanted to bring the bill as it was.”

Prof. Nyane indicated that the approach to reform was incorrect from the beginning, adding that attention was not paid to the structure or theory of the Constitution. Saying that they had randomly picked sections they wanted because they were in a hurry, and they now wonder why the process has now collapsed.

The reforms process first experienced a major impediment in September last year when the High Court (sitting as the Constitutional Court) nullified the 11th amendment to the constitution after it was passed by the recalled 10th Parliament as that Parliament required to influence some key changes to the Constitution before the country’s 2022 general elections.

The recall was later found to be outside the requirements of the law following a constitutional challenge to the purported state of emergency that resulted in the recall of parliament. As a result, all the business the Parliament conducted upon its recall also fell off. But even without the constitutional challenge, some of the provisions would have passed and been signed into law without a poll, making the laws susceptible to legal challenges.

He concluded by stating that “Inclusivity cannot just be limited to reaching out to as many people as possible at a horizontal level. It is also about giving the process more depth, by providing specialist groups with decision-making authority on how the constitution can and should be shaped.”

He also added that if the new initiative was to work, a much broader range of voices must be included to help constitutional negotiators determine the real order of priorities, instead of just focusing on the same issues that have been consuming them in the past. This should and can happen through a number of means, by encouraging Basotho to never give up in expressing their priorities for better and successful reforms