This is what a people’s victory looks like

THE decision of the High Court of Lesotho in Boloetse and Tuke v His Majesty the King, confirmed by the Court of Appeal, is a victory of monumental proportions for Lesotho and the people of Lesotho. It comes out of the consolidated cases separately instituted by journalist Kananelo Boloetse and Advocate Lintle Tuke.

In those cases, the applicants challenged the unconstitutionality of the declaration of the state of emergency by the Prime Minister, of the subsequent recall of the 10th Parliament by His Majesty the King and of the Acts of Parliament which were passed by Parliament upon its recall.

The High Court had agreed with applicants and granted the orders as sought. The respondents then appealed to the Court of Appeal which dismissed the appeal. The purpose of this article is to demonstrate and highlight the value and implications of the decision on the popular sovereignty of the people of Lesotho, rule of law and accountability in Lesotho.

To understand why that judgement is of fundamental importance you have to go back to the history of Lesotho.

From 1868 to 1966, Lesotho had been under colonial administration. The colonial enterprise did not only interfere with and restructured the custom-based socio-economic and lego-political systems and structures of governance but also stratified the people of Lesotho along social classes.

At independence, the 1966 Constitution was hoisted on Basotho from the Colonial Office in London. Since then, political violence, human rights violations and instability characterised governance and political life in Lesotho.

It was only in 1990 when, pushed by the constitutionalisation wave, the military regime urgently cobbled up the reforms agenda and processes leading to the 1993 Constitution.

The Constituent Assembly and the Constitutional Commission, the structures which implemented the 1990 reforms, were however not widely representative, did not hold all-encompassing consultations and ended up with a product which, to a large extent, lacked sociological legitimacy as ownership of the Constitution by Basotho remained a challenge.

Since the ushering of the democratic rule in Lesotho in 1993, it became clear that there were gaping cracks not only in respect of the substantive content of the Constitution (discrimination issues, justiciability of second-generation rights, powers of the King, etc) but also in the governance structures and the political system (e.g, Defence Commission, electoral model, etc).

This led to several efforts and measures being taken to patch up the areas of concern through, for example, amendments to the Constitution, the establishment of the Independent Political Authority and introduction of the Mixed Member Proportional representation model etc.

The advent of coalition politics in 2012 fueled the fires of discontentment, despair and despondency by the people of Lesotho at the spectre of lack of accountability, democratic backsliding, the cancer of corruption, irresponsive governments, cronyism and nepotism, abuse of state power, mismanagement of state funds and resources, docile first defenders of the Constitution (Attorneys General), the politicised judiciary that is unable to equalise and restructure power configurations at the social and state levels and a slumbering legal professional body.

The events (political instability and violence) of 2014 triggered the necessity for Lesotho to undertake constitutional reforms in seven thematic areas (constitutional, parliamentary, security sector, public service, justice sector, economic and media) through the establishment of the National Reforms Authority (NRA), following widely consultative, participatory and inclusive processes.

Exercising their popular sovereignty through the NRA – effectively, the Constituent Assembly – the people of Lesotho presented the proposed reforms in a form of a Bill (later called the Omnibus Bill 2022).

The National Assembly whose members were duly represented in the Constituent Assembly (NRA), in a surprising about-turn, astonishing all and sundry, mounted a parliamentary coup on the NRA proposed reforms, thus rejecting the essential content of the

NRA proposal, effectively disrespecting the popular sovereignty of the people of Lesotho as expressed in the proposed NRA Bill. This they did a few minutes shy of the dissolution of the 10th Parliament on the night of July 13, 2022.

The Prime Minister’s declaration of the “artificial” state of emergency was a forerunner and precursor to the recall of parliament by His Majesty.

Before the recall, the lieutenants of the parliamentary coup convinced many and His Majesty that they would, upon resuscitation of the dissolved parliament, steer a cause close to the NRA Bill. Once more, and upon exhumation from the dead, the coup operatives remained true to their real character and script.

They passed the Assembly Bill far from the NRA Bill and contrary to promises they made during the consensus-building forum organised by the Lesotho Council of Non-Governmental Organisations on the 3rd to 5th August 2022. They also passed the National Assembly Electoral (Amendment) Bill 2022. His Majesty assented to these Bills and others into law.

The Constitutional Act Passed by Exhumed Parliament: What it Should be versus What it is.

I will focus only on the 10th Amendment to the Constitution Act 2022. It is an Act which should in principle transform and translate the values, aspirations and wishes of the entire nation as expressed in the NRA Bill into basic norms that will henceforth regulate not only the lives of the people but also the entire governance and the political system of Lesotho. It is an Act which should usher the new constitutional order into Lesotho.

It is an Act which should express the consensus of the people of Lesotho. It is an Act which should be a launch-pad and foundation for the reconciliation of the conflictual relations between the people of Lesotho. An Act on whose pedestals Basotho would be able to come together and heal the wounds of their historic past through institutionalised transitional justice.

It is the Act which should form the cradle for peace and unity in Lesotho. It is an Act which should usher the “new Lesotho which we have all always desired and wanted.” It is an Act that every sector of our social and political strata should be able to stand behind and point out as a reflection of the soul and identity of the people of Lesotho.

It is an Act which should express the national identity of Basotho. It is an Act which should express and mirror the popular sovereignty of Basotho. It is an Act which should be able to make Basotho forget the past and press for a better Lesotho. To sum this up: it should be an Act that should come from the Constituent Assembly, expressing the national consensus and soul of “THE LESOTHO WE WANT”.

The 10th Amendment of the Constitution Act 2022 is, in reality, far from the transformative Constitution which Basotho wanted, as expressed through the eye of the NRA Bill. This Act is a creature of members of the National Assembly of the 10th Parliament, and not of the people of Lesotho.

It is the product of the exercise of the borrowed “legislative power” of members of the National Assembly, and it is not an expression of popular sovereignty of the people of Lesotho. It is the product and spoils of the parliamentary coup operatives. It is the “ruins and debris” of the “power” struggle between “legislative power” and “popular sovereignty”, upon which the members of the National Assembly of the 10th Parliament of Lesotho wanted our new constitutional order and democracy to be founded, constructed and built.

It is an Act which sows and deepens social and political conflicts and cuts new incisions into the pained hearts of the people of Lesotho. It pours “salt” on the gaping wounds of our historic past and present challenges, as it were. It is an Act which mirrors “the Lesotho which members of the National Assembly want”.

It is the National Assembly’s subterfuge for consolidation of existing power configurations and perpetuation of the political and socio-economic maladies of the 1993 order.

If the Act had become law, Lesotho and the people of Lesotho would have lost “the constitutional moment” to restructure power (individual and State power) and to usher the new dispensation and order in Lesotho.

It would take Lesotho another 30 years to undertake credible, open and genuine reforms, whilst their political and socio-economic status remain worse than when they adopted the 1993 Constitution.

It is in this context that the decision of the High Court as confirmed by the Court of Appeal has become a monumental victory to the people of Lesotho in many respects.

The Value and Importance of the Court’s Decision The court’s decision is of immense importance in many material respects.

First, for the first time in the Kingdom of Lesotho (counting from 1868 when Lesotho came under colonial administration), the Roman-Dutch law received in the Kingdom did not allow any person to approach a court of law complaining about the exercise of public power which affects the public. Unless the complainant is himself or herself affected and can show the prejudice or harm peculiarly suffered or likely to be suffered by him, the doors to the courts were closed.

The consequence of these common law standing rules was that the government and other functionaries of public power were immune from scrutiny by the courts. The only solution was to await the election period to remove such state functionary, or to pit our hopes to powers-that-be to come to their senses and take appropriate action.

For the first time in 154 years, the High Court and the Court of Appeal declared that any person with sufficient interest in the actions or decisions of the State and State functionaries can approach the court for the review of the action and decision.

This public interest standing is of monumental value and is a cradle for the protection and advancement of the rule of law and constitutionalism and for holding the Government and State functionaries to account for their actions and decisions.

Second, the public interest standing decision of the High Court and the Court of Appeal takes the people of Lesotho and their justice system back to the pre-colonial era and days of Morena Moshoeshoe.

The pre-colonial justice system was not only founded on restorative justice values but also allowed any aggrieved person, however despised and of no social standing in the public, to bring to the attention of “Khotla” – the court of the Chief – a wrongful conduct, to participate in the Khotla deliberations, and to seek or suggest an appropriate remedy or relief.

It was in that traditional setting where “Bo-Motinyane le bona ba nang le lentsoe” – even the smallest of birds, the Grass Warblers, were recognised and their voice heard. The participation of common and/or lowly persons in the administration of the affairs of the State inculcated discipline and responsiveness on the part of those who exercised public power, and consequently put corruption at the lowest ebb.

Though not a panacea, the High Court and the Court of Appeal decision allowing the Grass Warblers (Bo-Motinyane) in the persons of Boloetsi and Tuke and the like, to open the high gates leading to the fountains of justice (the courts), will go a long way in the direction of discipline and accountability on the part of State functionaries.

Third, the decision is a great blow against the government’s unresponsiveness and lack of accountability. It affords more arsenals and tools in the people’s war against corruption, cronyism and nepotism. It is the triumph of the rule of law and constitutionalism over power, grandstanding, subterfuge and braggadocio by the political class in the Kingdom.

Fourth, the decision has effectively snatched the “loot” and “spoils” from the parliamentary coup operatives (National Assembly members) and restored the “stolen goods” to the rightful owners, the people of Lesotho. The sovereign power of the people is a supra-constitutional power high above the legislative power which the people have lent to their representatives (members of the National Assembly).

It was indeed remarkable to see the members of the exhumed 10th Parliament purporting to use the five-year-long borrowed legislative power to frustrate the implementation of the long-awaited national reforms (expressed in the NRA Bill). The people’s superintending power – the sovereign power of the people of Lesotho – was unconstitutionally subjected to the inferior legislative power which has “temporarily been granted to representatives” of the people to legislate.

The National Assembly failed to understand that within the context of the national reforms undertaken through the exercise of popular sovereign power, the role of parliament is limited to Certification, Ratification and/or Passing of the People’s Bill into law.

Fifth, the Courts, through this decision, have finally wrestled themselves out of the “strong-room” of the common law rules, in which the judiciary in Lesotho has been operating for more than one-and-half centuries.

Many including the Law Society, have beaten the “dead horse” and spurred it in the “public interest standing” and public interest litigation direction; the Stallion never moved an inch. The Stallion woke up in 2022 and trotted out of the common law shackles.

The Boloetse and Tuke case is the seminal key through which the orientation and capture of the judicial mind in common law manacles is ultimately freed.

Finally, the decision is a citadel of hope.

Hope for the people of Lesotho that the transformative constitutionalism which they aspired for almost 30 years ago (since 1993), will start to be implemented through public interest litigation.

It is a hope that not only public interest standing has been extended to the public-spirited people to take recourse to the courts, but that the courts will move further to ensure that appropriate innovative remedies will henceforth be developed and granted by the courts in meriting cases, to bridge the gap between the pious rhetoric in the paper (the Constitution) and the social reality of squalor living conditions of the people of Lesotho.

It is the hope that the next Parliament, the 11th Parliament, will refrain from the corruptible steps of their predecessor, and ensure that the people’s reforms, the People’s Bill, is duly certificated, ratified and passed into law.

We live to see that which is hoped for by the people of Lesotho, come to pass.

l Advocate Maqakachane is the president of the Law Society of Lesotho.

Advocate Tekane Maqakachane