Is the reforms process cursed?

THE country’s much awaited reforms process, which has been moving at a snail’s pace, is now saddled with new hurdles.

It could be delayed further if the Constitutional Court upholds activist and MISA-Lesotho chairperson Kananelo Boloetse’s bid to interdict parliament from sitting next Monday.

Mr Boloetse argues that Parliament cannot be recalled to consider the Omnibus Constitutional Bill and other draft laws that lapsed at the dissolution of the 10^th parliament in July last year.  He wants the reforms process started afresh as reported elsewhere in this edition.

Parliament had been recalled from its winter recess to meet on Monday 14 August 2023 to deliberate over and pass the Omnibus Bill, which encompasses most of the envisaged reforms.

Mr Boloetse’s argument is that parliament cannot resuscitate Bills that were “declared dead” by the Constitutional Court judgment of September 25, 2022. His interpretation of that judgment is open for debate. The Constitutional Court had ruled that the recall of the 10^th parliament via a state of emergency to pass the Omnibus Bill by then Prime Minister Moeketsi Majoro was illegal.

Mr Boloetse is not only against the revival of the Omnibus Bill.

He is also seeking the invalidation of all Bills that had lapsed with the dissolution of the last parliament but had now been enacted by the new parliament. These include a wide array of Bills that were passed on 8 December 2022.  Among them were Bills meant to advance women’s rights like the Harmonisation of the Rights of Customary Widows with Legal Capacity of Married Persons Bill, 2022 and the Counter Domestic Violence Bill, 2022.

He wants all the Bills that collapsed with the dissolution of the 10^th Parliament to be declared dead, and the process of drafting new Bills to start from scratch under the ambit of the new 11^th parliament. While last year’s Constitutional Court judgment was clear about the unlawfulness of the process used to recall the 10^th Parliament to pass the Omnibus Bill, Mr Boloetse’s interpretation of that judgment as nullifying all Bills, that were pending before the dissolution of the 10th parliament, but had since been revived by the 11^th parliament is debatable.

While the merits of Mr Boloetse and his co-applicants’ arguments are for the courts to decide, they inevitably pose a new threat to the successful completion of the reforms process.  If the courts uphold Mr Boloetse’s application, an inevitable constitutional crisis ensues.  Imagine all the laws that have since been implemented since the new government came to power in October 2022 and others originated in the 10^th parliament, but still awaiting parliamentary approval, being wholly undone?  It is an unfathomable scenario.

It’s also as if Lesotho’s long drawn reforms process is cursed and will never be completed. A new obstacle almost always emerges when progress is anticipated.  We have witnessed that in the last couple of weeks yet again.

Speaker of the National Assembly, Tlohang Sekhamane’s, initial Circular No. 3 of 2023, recalling parliament from its recess had to be withdrawn after protestations from the Official Leader of the Opposition in Parliament, Mathibeli Mokhothu.

That circular would have seen Parliament sitting on 7 August 2023. How the Clerk of Parliament, Advocate Maema, who ostensibly drafts the circulars on behalf of the Speaker, could make such a schoolboy error, on a simple procedural matter, boggles the imagination. After all he is a trained lawyer and ought to know better. It was only at the behest of Mr Mokhothu that the error was rectified and a new circular issued.

In his letter to Mr Sekhamane dated 31st of July 2022, Mr Mokhothu had asserted that the circular titled ‘Special Meeting of the Eleventh Parliament of the Kingdom of Lesotho’, did not comply with provisions of parliament’s Standing Orders. It did not observe the 14 days’ notice for parliament’s recall.  It did not specify the ‘nature’ of the business to be transacted.

We had thought all was good to go after Mr Sekhamane corrected his error and issued a new circular. We were anticipating progress on Monday 14 August 2023. But Mr Boloetse then emerges with his application seeking to completely halt the reforms. We will probably know the fate of Mr Boloetse’s latest court action in the next few days.

What is clear for now is that it presents a fresh setback for the reforms.

It is always difficult to predict court outcomes. If he succeeds, then the whole reforms process is in limbo. It will be essentially back to square one.   Mr Boloetse’s bid to invalidate the whole Omnibus Bill is deeply ominous. While it is every citizen’s right to seek judicial redress, we cannot help but ask why Mr Boloetse waited until the eleventh hour – when parliament is recalled – to initiate his court bid. He has been quite all along.  Why didn’t he start the process long back because he was well aware of the issues he is raising now?

Is he being opportunistic to justify his activism or does he have a valid legal point? We hope the courts expeditiously adjudicate the case. For some reason Basotho don’t seem to grasp the importance of completing the reforms process.

Lesotho will have nothing to report on the progress of the reforms at the crunch 17th of August 2023, 43rd Ordinary Summit of SADC leaders in Angola.

It’s common cause that SADC is deeply frustrated at the slow progress of the reforms process.  It has repeatedly tried to cajole Lesotho to complete the reforms for the country’s own benefit but to no avail.  Only a fortnight ago, the head of the regional body’s Panel of Elders, Tanzanian President Jakaya Kikwete, was in the country to do what many other SADC deployees have been trying to do umpteen times; to implore Lesotho to complete the reforms for its own benefit. But like petulant children, Basotho cannot complete the work. It’s as if we are cursed and condemned to our perennial political and economic penury. It has become inevitable to pose the question; Is this reforms process cursed?  Are we a cursed nation?

Prime Minister Sam Matekane won the October 2022 elections with a strong vow to complete the reforms process. He promised to ensure that Lesotho seizes to be a regional problem child. That promise now stands hollow.