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Development or decay: Whither Lesotho?

IN emerging democracies such as Lesotho, constitutionalism is topical in the contemporary debate over power-sharing mechanisms that hold together the diverse contending political ideas. 

Beyond acceptable elections, Africa is battling with institutionalisation of democracy which mandates public and private institutions to follow certain specified rules of fairness, freedom, rule of law, non-discrimination on the basis of race, sex or any other sectarian tendency. 

One key factor which determines whether the country is experiencing political development or political decay is the ability of institutions of governance to counter check and balance power of one another.

 This article subjects the constitution of Lesotho to this analysis.

Political development occurs when institutions of governance are created or improved to effectively and adequately meet the demands of changing political attitudes of the populace. 

This denotes the equilibrium between institutions and laws on the one hand and political dynamics on the other.

If the institutions and laws are too excessive then oppression or dictatorship reigns but when dynamics overpower the institutions, then that is instability which may lead to anarchy, political decay and, ultimately, praetorianism.  

Lesotho’s constitution establishes key offices and institutions: Parliament, Cabinet, Chief Justice, Defence Force, Police Service, Attorney General, Ombudsman,  Independent Electoral Commission, Council of State, Judicial Service Commission, The King’s Office and that of the Prime Minister’s Office, to name a few.

The Prime Minister advises the King on the appointment of the Chief Justice. 

The question is whether the Chief Justice can objectively handle cases in which the Prime Minister is involved.

The provision which may be understood as enhancing the independence of the Chief Justice and other judges of the High Court is that they may only leave office upon failure to perform duties or behaviour that involve the high office. 

When there is a reason to believe that these conditions prevail, in the case of the Chief Justice, the Prime Minister shall advise the King to appoint a tribunal that will investigate the matter and recommend accordingly. 

The seemingly fair process seems to be compromised because the tribunal members are selected by the Prime Minister.

The Judicial Service Commission plays an important role as it advises on the appointment of other judges of the High Court.

The composition of this Commission is the Chief Justice as Chair, Attorney General, Chairperson of Public Service or its member and a legal professional whose term expires after five years.

The Attorney General is mandated by the constitution to, among other things, advise government on legal matters, direct public prosecution and protect and uphold the constitution and other laws. 

In performing his responsibilities on the first two tasks, he may not be controlled by anyone.

The question is what about when he performs other tasks?

Another important institution is the Council of State made up of the majority of offices which are appointed by the King acting on the advice of the Prime Minister. 

It is only on the basis of the Council that the King may refuse the advice of the Prime Minister to dissolve parliament if He (the King) believes that Lesotho can still be ruled properly without dissolution.

Generally, looking at these institutions, the intention has been good to separate powers and responsibilities. 

This idea is noble because it is only when institutions are able to check the power of the other that democracy can grow and political development is experienced. 

There is no doubt that personalities holding offices such as the Office of the Chief Justice, Speaker of National Assembly, Commissioner of Police, Attorney General, etc, forming the majority of the membership of Council of State are highly regarded and people of high esteem.

However, the critical question which puts our democracy to test is whether the Council of State in its current form can in time of political desperation advise the King to refuse advice of dissolution from the Prime Minister?

If the answer is No, then it means the constitutional means of removing government before elections is a fallacy. 

Are there enough safeguards for the judiciary to discharge its duties without the influence of the executive which is made up of politicians?

Voters believe parliament to be their ultimate form of collective power; is it not true that parliament is not controlled by the people who elected it but, instead, by the elites through parliamentary party caucus which teaches MPs how to speak in sessions and act in committees on certain Bills?

It would appear that Lesotho is not yet reversing into political decay but there is a lot of work to be done if our constitution is to steer us towards real political development. 

As it stands the constitution is vulnerable and its institutions may be used to undermine the purpose for which they have been formed.

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