Constitutional Review Commission urgent priority

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Utloang Kajeno

DURING the 1990’s, Justice Michael Mathealira Ramodibeli chaired the Lesotho Land (Tenure) Reform Commission. Its recommendations gave birth to our current land tenure system, and are its bedrock.

The then government established a Commission because it was mindful of the critical economic and agrarian role that land plays in any society.  Those with extensive knowledge of the Holy Scripture might well refer to I Kings, Chapter 21. It chronicles the story of Naboth, the Jezreelite and Ahab, the king of Samaria, and is popularly titled, “Naboth’s Vineyard”. To this day, as testament to the importance of land, the Israelites are still locked-in internecine war with the Palestinians, because the former regard the Biblical “Promised Land” as theirs bestowed by God, according to the Holy Scripture.

I am reciting this parable in order to underscore the impeccable importance of land in a similar vein to constitutions throughout the world and in relations between countries, and nations, as well the seminal role these two commodities or documents play in intra-human relationships.

On the basis of this importance therefore, I urge the new coalition government and the opposition parties to establish a Constitutional Review Commission, as a matter of top priority, in their official business.

It is therefore gratifying that Deputy Prime Minister Mothetjoa Metsing and Leader of the House and Government Business in the august house, is reported in the media to have said on Wednesday, last week, that there is merit in the clamour for a new Constitution.  The DPM is very right. This nation needs a new Constitution to repeal or amend the 1993 document.

A constitution is universally defined as the Supreme Law, comprising rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state.  Most states, barring the United Kingdom (UK) (which has a largely unwritten constitution) and a few others, have written constitutions.

The Constitution of the UK consists largely of statutes, the amendment of which by subsequent statutes requires no special procedure.  It also, to a very significant extent, consists of common law rules and constitutional conventions.  For clarity, the common law on the one hand, is that of English law based on rules developed by the royal courts during the first three centuries as a system applicable to the whole country as opposed to local customs.  It is the unwritten law, that portion contracted by the Acts and regulations and is applied to the whole country as compared with local customs which may be observed in certain localities or communities.

Constitutional conventions on the other hand, are practices relating to the exercise of their functions by the Crown, the government, Parliament and the judiciary that are not legally enforceable but are commonly followed as if they were.

Granted, a commission is a prohibitively expensive undertaking by any government, let alone Lesotho with its small and fragile economy, but it would go a long way in making recommendations that, if incorporated in our new, or amended Constitution or repealed, would hopefully settle in unambiguous provisions the many controversies that have been the unfortunate hallmark of our somewhat fragile and nascent democracy since the adoption of the current 1993 Constitution.

I have in the past argued vociferously that our Constitution merits, like any piece of legislation, important though it is, amendments or to be repealed or wholesale adoption of a new constitution.  However, whether this country needs a completely new Constitution is a matter to be decided by Constitutional experts.

Legal scholars, lawyers and judicial officers might argue that the many constitutional cases we have that arise-out of differing constitutional interpretations are good for the development of our jurisprudence. However, I beg to differ. These different interpretations have not only jeopardised our young democracy and stability as a nation but it has recently, though it is sad to admit, led our country to the brink of civil war.

I have often argued that a constitution needs to be re-visited every now and then and amended accordingly or repealed. This is to meet the demands of the ever-changing modern world.  There will always be new challenges, technologies and scenarios that come-up every now and then. The world changes so fast that the fathers and crafters of our current Constitution, despite their good intentions and their undoubted abilities could not by then have foreseen.

A case in point is the Constitution of perhaps arguably the world’s oldest democracy together with the United Kingdom, the United States (US).  The Constitution of the US is over 200 years old yet by 1992 it had no less than 27 amendments.  However, this does not detract from the fact that the US Constitution, old as it is, was and is still one of the best and most comprehensive in the world.

Nearer home, South Africa, has arguably the best and most unambiguous Constitution in the world. Yet still, constitutional litigation in that young democracy of only over 20 years, is still instituted in great numbers.  Therefore, the argument for a largely un-amended or static and rigid constitution does not augur well for our jurisprudence is a non-starter.  Constitutions should never and are never cast in stone.  They are products of human ingenuity and limited foresight, which all humans are subject to, therefore they are at times, depending on circumstances, merits to be repealed amended during a nation’s evolution as a democracy. The constitution has to be reviewed and be responsive.

Lesotho justifiably prides itself as having a Westminster type of constitutional democracy like most other Commonwealth countries.  However, herein lies the catch and the most critical difference between Basotho and the British. The British democracy is a tradition established long time ago and ingrained in their collective wisdom and conscience since time immemorial.

By contrast, our democracy in Lesotho, was only implemented in 1993, meaning we are less than two decades into anything that can be called a democratic dispensation. Though I am chary to admit, our institutions that ought to promote and protect our democracy are the very institutions that undermine our democracy unlike the British institutions which we so much profess to duplicate.  This is a very sad indictment on our democratic collective credentials, ideals, ethos and principles. However, this debate belongs to another day.

The following few controversies will substantiate my argument that we need to establish a Constitutional Review Commission to identify, invite in-put and make recommendations as to what amendments to make. This Commission needs to invite all stakeholders from civil society groups, non-governmental organisations, political parties, traditional leaders academia, and indeed from across the social spectrum.

For instance, there is no reason why Lesotho still prohibits according to the constitution, section 41, dual citizenship.  Lesotho is geographically, historically and economically linked to South Africa, and this will never change.

The period during transition from the out-going government to the new in-coming government has to be governed by clear unequivocal constitutional timeframes. We sadly witnessed during the period between the snap general elections and installation of the new government ministers from the outgoing government allegedly holding onto benefits and facilities extended by the state as if it was a continuation whereas it was time to appoint and install a new government.

Furthermore, there was also a lot of controversy regarding the interpretation of the transitional period in government. The issue of whether and what critical appointments ought to be stopped until the installation of the new government after proclamation of the elections date was also contetious.

There was also a lot controversy during the past government as to what are the powers of the prime minister vis-à-vis the cabinet and critically in relation to the other coalition partners.

Even more importantly, the new constitution or amendments should state unequivocally who controls and has authority over and appointment of the commander of the army, commissioner of police, and their respective security institutions.  Also who is senior and therefore head of the judiciary between the chief justice and the judge president.

While the Constitutional Review Commission might not be a panacea for all our constitutional crises, it will go a long way towards making our democracy work better without much bickering.  A constitution like I earlier argued, is a product of a human being who is fallible but for the sake of our country’s stability, prosperity and future generations, let us amend the current one or, if need be, repeal it altogether and adopt a completely new one.

My argument is that if the then government saw the need to reform our land tenure system by establishing a commission, then surely, with the constitution, the urgency and the merit is even much bigger than at that time.

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