Thursday, 25 June 2020

Ever since Lesotho, the mountainous southern African constitutional kingdom of about 2.2 million, attained independence from Britain in 1966, its development has been punctuated by all manner of constitutional breakdowns. These have ranged from coups, dictatorships and military rule.

Among the long list of factors that account for the long-running political instability in the country, the flawed constitution ranks high.

It is now a matter of common course that successive interventions by the Southern African Development Community, in a bid to bring peace to Lesotho, have failed. One of the main reasons is that the solutions often provided are palliative; they ignore the need for fundamental constitutional reform.

The organisation of Lesotho’s state institutions is fundamentally flawed. Almost every institution is an appendage of the executive: oversight institutions, security agencies, parliament, and the judiciary. There is a very weak balance between key state institutions.

Despite the fact that it was adopted only as recently as 1993, Lesotho’s constitution is fairly outmoded. The country had a chance to adopt a new constitution when it emerged from dictatorship under Prime Minister Leabua Jonathan and rule by a military junta, both of which lasted for about twenty years. Instead, what followed was a mere rehash of the 1966 constitution.

As such, the current constitution is cast in the classical Westminster conceptions that countries in Africa and elsewhere have long jettisoned. The fundamental structure of the constitution is bad and unsuited for modern-day constitutionalism.

Different approaches

While there is some consensus about the need for constitutional changes, there is considerable disagreement in the country about the kind of constitutional changes that are needed, and how extensive they should be.

There are those who say that the changes must be incremental and phased. The justification for this approach is that there are minor and urgent changes that can be effected with relative ease. These can be carried out within a short space of time, and without a need for huge resources. This include, for example, reducing the powers of the Prime Minister in relation to other branches of government.

This justification is largely based on expediency. The proponents of this approach use the recently adopted Ninth Amendment to the constitution as an example of the success of the incremental approach. The amendment, in the main, prevents a Prime Minister who has lost a vote of no confidence in parliament from calling an early election. It leaves him or her with just one option; to resign. The amendment had an immediate application in May 2020 after then Prime Minister Tom Thabane lost the confidence of the National Assembly.

On the other hand, there are those who believe that this success is shorlived; that the country should seize this opportune moment to change the entire constitution. I belong to this group. Lesotho needs a new constitution altogether, and as a matter of urgency. A new constitution is needed that will design new institutions that work in a balanced manner and contribute to the transformation of the country from its historic shackles of instability, poverty and abuse of fundamental rights.

What’s wrong

The fundamental principles on which the current constitution is based are outmoded. It is based, among other things, on a very weak model of separation of powers and checks and balances.

PM Tom Thabane recently stepped down as Lesotho’s PM. EFE-EPA/MIchael Reynolds

The executive is virtually untrammelled. It appoints and dismisses, almost single-handedly, the heads of security agencies, heads of oversight institutions, and the heads of the superior courts. It even appoints all chief accounting officers in the civil service.

This kind of institutional design is typical of classical Westminster constitutions. Most of them are cast on monarchical prerogative. Thus, when political power in Lesotho shifted from the palace to cabinet with the 1993 constitution, all the prerogatives of the monarch shifted to the Prime Minister. The Prime Minister, therefore, virtually exercises all the erstwhile prerogative powers of the King.

When power is so concentrated in the hands of one person, abuse is inevitable. Indeed, the office of the Prime Minister has been the fulcrum of instability in Lesotho. The successive incumbents have used other state institutions to suppress dissent and perpetuate administrative malfeasance. The army, the parliament, and the judiciary have been the major instruments in this onslaught.

Another fundamental problem with the constitution is that the country has a bad Bill of Rights. All the rights in it are fraught with claw-back clauses, to the extent that the “fundamental rights” it supposedly enshrines are reduced to an empty list of promises.

For instance, section 18 provides for the freedom from discrimination. But it then provides for a long list of limitations to the right. It even outrageously includes one that says freedom from discrimination does not apply to members of the “disciplined forces” such as members of the army, police and correctional services. It also says that the right does not apply when the basis for the violation is customary law.

Effectively, women whose rights are often suppressed through the use of customary law in Lesotho, can hardly expect meaningful protection of their rights from the Bill of Rights. Most importantly, it excludes social and economic rights. This is despite the fact that Lesotho is trapped in the least developed countries category.

The importance of having enforceable economic rights is that it changes the constitutional orientation of the country entirely, from a liberal constitution to a post-liberal one. A post-liberal constitution - such as neighbouring South Africa’s - embodies the positive obligations of the state to remedy historical realities. It’s imperative for Lesotho to move in this direction.

Time for boldness

There is no amount of gradual change that can remedy these fundamental deficiencies. It’s time for an overhaul of the entire constitution. Its deficiencies are both structural and fundamental.

Lesotho would do well to follow the example set by the likes of South Africa and Kenya, whose constitutional projects became a success. Instead of just tinkering, they bravely adopted completely new constitutions that marked a clear break with the past.

This is the path that Lesotho needs to take. The incremental approach only adds to the already existing confusion about relations between state institutions in the country. That will only amount to an unsustainable patchwork.The Conversation


Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of Limpopo

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Published in Opinion & Analysis

South African businesswoman Bridgette Motsepe-Radebe has resumed her eight-month-long fight to clear her name of allegations of money-laundering and fraud in Botswana.

She issued a statement on Tuesday 23 June shortly after it was announced that AfriForum’s Private Prosecution Unit, headed by Gerrie Nel, had been appointed by the Botswana government to help it pursue its case against Motsepe.

She has also been accused of helping finance a “coup” attempt against Botswana President Mokgweetsi Masisi in 2019, and of bankrolling his opponent’s campaign months before last year’s general elections in October.

“There is no truth to these allegations,” Motsepe said. “I have never laundered money. I have denied these allegations since December last year on the basis of readily available evidence which has already been widely reported on in both South Africa and Botswana media.”

Motsepe said the allegation that she was a co-signatory of at least two bank accounts holding funds allegedly stolen from the Botswana government to finance the “coup” was “baseless”, and she had already publicly produced letters from the banks in question – Absa and Nedbank – stating that the alleged bank accounts didn’t exist.

In its statement on Tuesday, AfriForum said Nel and Phyllis Foster had been officially appointed by Botswana’s Director of Public Prosecution, Stephen Tiroyakgosi, to represent that government in this case.

“It is preposterous to allege that I am a co-signatory of bank accounts that don’t exist, held by companies which also don’t exist,” she said.

Motsepe said the Bank of Botswana has previously publicly refuted claims that 100-billion pula had been stolen from its accounts. She has appointed an international law firm Omnia Strategy LLP, led by Cherie Blair, to clear her name by investigating the money laundering allegations, and said she would sue those who made these “false allegations” against her.

The allegations first surfaced in an affidavit by an investigator in Botswana’s Directorate on Corruption and Economic Crime, Jako Hubona, during the bail application of a former intelligence agent, Welheminah Maswabi, who was codenamed Butterfly.

In its statement on Tuesday, AfriForum said Nel and Phyllis Foster had been officially appointed by Botswana’s Director of Public Prosecution, Stephen Tiroyakgosi, to represent that government in this case.

“The mandate in this case is to facilitate the Botswana government’s request for mutual legal assistance in the Bank of Botswana fraud and money-laundering matter.”

AfriForum alleged that Tiroyakgosi had already requested this assistance on September 25 from SA’s Department of International Relations and Cooperation (Dirco), but that none was forthcoming. Nel said this showed “that the South African government is unwilling to assist our client with their request”.

Dirco spokesperson Clayson Monyela, however, said: “AfriForum is barking up the wrong tree.” He said Dirco would “happily” have provided the information had AfriForum asked for it. The department received a request for mutual legal assistance through a diplomatic note on September 17 and replied on September 25, saying it had submitted this request to the Department of Justice.

“My information is that their request is receiving attention from the Department of Justice and their relevant agencies,” Monyela said.

In its request, the Botswana government asked South Africa to keep the request confidential. Its letter doesn’t list Motsepe amongst the seven suspects, but it does include former president Ian Khama, who is a close friend of Motsepe. It also mentions Khama’s former spy boss Isaac Kgosi as well as Maswabi, who was a technical manager for Kgosi.

Maswabi’s case is due to be heard on August 17, after it was postponed in May to give the state more time to complete its investigations.

The matter against Motsepe, who is President Cyril Ramaphosa’s sister-in-law, has strained diplomatic relations with Botswana. The then-minister of international relations, Lindiwe Sisulu, travelled to Botswana in April last year to assure the government there that Motsepe’s alleged attempt to back a rival candidate to Masisi in the governing Botswana Democratic Party’s leadership election didn’t have anything to do with the South African government.


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Published in Business

Angola plans to kick off niobium exploitation at Bonga mountain, located at central Huila province's municipality of Quilengues, in the second half of this year, official said on Tuesday.

After two years of prospecting, the rare superconducting material, used in the space industry, niobium will be exploited for the first time in the country, said Adriano Pedro, Quilengues' administrator.

For the exploitation, Pedro said a mining company is investing 100 million U.S. dollars for the project, adding that the prospecting process of the mineral made it possible to collect samples and ensure the quality of the ore.

Given the project has already been authorized by Presidential Decree and the prospecting process is over, the exploitation is able to start in the second half of the year, the official said.



Published in Engineering

Malawi's state and private media on Wednesday gave opposition leader Lazarus Chakwera a comfortable 55% lead in its presidential election re-run, with nearly three-quarters of votes counted, but there was still no official tally.

The state-owned Malawi Broadcasting Corporation and private media all had Chakwera with 55% or more, with President Peter Mutharika at 40%.

At a news conference late on Wednesday, Electoral Commission chairman Chifundo Kachale urged Malawians to be patient and await the official results, which he said were taking time because they wanted to get "a credible record."

"We are doing it manually. We'll use records from district tally centres and district commissioners, not social media. Our appeal to Malawians is to be patient," Kachale said.

If Chakwera does win, it would mean a dramatic reversal of the previous discredited result which handed the presidency to Mutharika. Some in the main city Blantyre and other parts of the country were already erupting into celebration.

Tuesday's vote has been seen as a test of the ability of African courts to tackle ballot fraud and restrain presidential power, ever since Malawi's judiciary infuriated Mutharika in February by overturning the result of last year's poll. His disputed win also triggered months of street protests.

Mutharika has complained of violence in opposition strongholds in central Malawi, and questioned whether the result would be credible. His party have lodged a complaint about violence in opposition strongholds in central Malawi, but it is not clear if they will dispute the result if he loses.



Published in Economy
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