THE Reforms Process was botched, legal gurus said on Friday this week. The Court’s invalidation of the 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.
Dec. 1, 2023
5 min read
'Reforms were botched'
Chief Justice Sakoane Sakoane
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That process must be well thought out, led by experts, and be the will of Basotho, as contained in the Plenary II report, Chief Justice Sakoane Sakoane has said.
He made the remarks at a Constitutional Reforms Symposium organised by Human Rights Organisation Transformation Resource Centre (TRC) in Maseru on Thursday this week.
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.
The symposium, according to TRC, also sought to answer what would be a proper design for the reform process that the country seeks to embark on.
Justice Sakoane was a guest speaker and spoke on the judicial role in the Constitution remaking and redesigning process.
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 because this process is donor-driven; that is the main problem. Did Basotho, through plenary II, say listen to donors? I was not there when Basotho gave this mandate, but I know the preambles of many constitutions say, We the People, this is the only law created by the people and should reflect their wishes.”
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 maximise 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.”
The amendments contained in the Omnibus Bill/10th Amendment to the Constitution were not a fair reflection of Plenary II and amounted to rewriting the Constitution improperly. He maintained that the reform process belongs to Basotho and must reflect their views.
“I know for sure that reforms belong to Basotho but were hijacked along the way by those with power; clearly, this process has been hijacked."
“By looking at what other nations have done, it would solve many of our problems. He explained that in other countries, experts write a draft, subject it to the people, and they are able to come up with what they would want.”
President of the Senate, ’Mamonaheng Mokitimi also raised concern about the composition of the NRA, saying the government may have been under political pressure to form an institution overseeing reforms.
“It is clear that what needed to be done by the NRA was technical and needed experts."
Experts who spoke at the event were all in agreement that Lesotho’s reform process was erroneously done. Instead of constitutional amendments, there is a need to rewrite the Constitution.
Some amendments, according to the experts, violate the basic structure, text, and substance of the Constitution.
American-based law professor, Ricard Albert spoke on 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 borne out of the process.
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.
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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.”
The approach to reform, Nyaane said was incorrect from the beginning. He said attention was not paid to the structure or theory of the Constitution.
“We randomly picked sections we wanted; we were in a hurry, and little wonder why the process has now collapsed.”
The reforms process first experienced a major setback 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 sought to effect 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 referendum, making the laws susceptible to legal challenges.