Drafting fresh constitution is the only way to save Reforms: experts



MASERU – Lesotho should consider writing a new constitution to resuscitate reforms related legislations that were contained in the now moribund 10th amendment to the constitution following its nullification by the courts. Writing a new constitution will not only correct the wrong procedure employed in the creation of the said Bill but would also correct contentsthat were problematic. Experts warn that the procedure followed in crafting the Omnibus Bill amounts to a “dismemberment” instead of an amendment.

Constitutional dismemberment is an illegitimate and unconstitutional way to reform or change a constitution. A dismemberment brings about big changes to a constitution which could in effect materially violate the design, substance and structure of a constitution. Experts also warn that courts are never reluctant to nullify the whole constitutional reforms borne out of a dismemberment. Lesotho finds herself in conversations of a new Constitution after attempts to reform the current constitution were nullified by the courts.  Reforms related legislations that were contained in an Omnibus Bill (10th amendment to the constitution) were nullified on two occasions as journalist-cum-activist Kananelo Boloetse challenged Parliament’s procedure and conduct in passing the Bill.

Law experts who spoke at a Constitutional Reforms symposium hosted by human rights organisation Transformation Resource Center (TRC) last week said the court’s nullification of the Omnibus Bill meant that the Omnibus Bill is now dead and must be resuscitated through a new process. That process, they said, must be well-thought-out, led by experts and must reflect the will of Basotho as contained in the Plenary II report.

They also said the court’s rulings provide an opportunity for Lesotho to correct fatal errors committed in the formulation of the Omnibus Bill and that such errors can be corrected by drafting a new constitution.

Law Professor and Constitutional Law expert, Professor Hoolo Nyane says attention was not paid to the structure and theory of the current constitution when an Omnibus Bill was drafted. A careful attention of the constitution would have ensured that the proposed amendments are in line with the theories of the Constitution.  Prof. Nyane says Lesotho’s constitution ismonarchical, democratic, parliamentary and liberal and therefore all proposed amendments should be in line with the four theories. He argues that Lesotho’s reforms process was mired in what he calls false starts and that the fact that politicians became the ones leading the reform process was and is problematic.

The fact that the National Reforms Authority (NRA) was not a constituent assembly aggravated the matter, he said. A constituent assembly is a group of elected representatives with power to make or change a country’s constitution. He called on those responsible to have experts lead the reforms process and maintains that in his opinion, there is need for a complete constitutional overhaul.

“I am on record from the very beginning as having said our constitution is not only old but bad, what is needed is a new constitution repealing the current one,” Prof. Nyane says. According to Prof Nyane, when the High Court (sitting as the Constitutional Court) nullified a Parliament’s recall under the pretext of a state of emergency in September 2022, effectively nullifying the Omnibus Bill in the process, it was an opportunity to correct what went wrong in the making of the Omnibus Bill.

Nyane says not only was the procedure wrong but the contents of the Bill were also problematic.

“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.”

He insists that the correction can be done by penning a new constitution altogether because both the procedure and contents of the Bill need to be considered. Even attempts by the current administration to pass reforms related legislation through a piece meal approach will not save the process, according to Nyane.

In its attempts to make progress on the reforms process, government had announced in a series of consultations with various stakeholders that it wished to take a piecemeal approach in dealing with the contents of the eleventh amendment to the constitution and was selling the idea to other stakeholders so as to make progress.

Deputy Prime Minister and Minister of Justice then, Justice Nthomeng Majara had said government thought it was wise to divide the eleventh amendment into three parts: provisions that need a simple majority, followed by provisions that need a two third majority and later those requiring a two thirds majority and a referendum.

Dividing the bill into subparts, she said, would make it easier for bills requiring a simple majority to be adopted and passed and thus making the much needed process. However, Prof. Nyane says that approach is still problematic in that consideration was not made with regards to the theories of Lesotho’s Constitution.

“The way we were going about this reform process needs serious introspection, we were not paying attention to the type of constitution we have; we randomly picked the sections we wanted and we were even in hurry coupled with the fact that NRA was not a constituent assembly,” Prof Nyane said.

He added: “The effect of Boloetse’s cases is collapse of the reforms process and this is now an opportunity to reflect on the type of constitution we have. The constitution of Lesotho is crying for a complete change.”

US-based Law Professor, Ricard Albert, warns that countries seeking to reform their constitutions must draw a distinction between an amendment and dismemberment.

Failure to draw a distinction, he says, opens floodgates for litigations challenging legislations borne as a result of a dismemberment.

Prof. Albert explains that an amendment serves only four purposes, which is to; elaborate, correct, reform and restore and that if it goes beyond its purpose, it amounts to a dismemberment.  He says an amendment does not introduce a transformative change to a constitution while a dismemberment exceeds boundaries set by current constitutions and often alters the identity or structure of a constitution. According to Albert, those who opt for constitutional dismemberment often do so because an amendment is a time consuming process.  However, he maintains that reforms borne out of a dismemberment cannot stand a constitutional test. He cited a number of instances where courts invalidated all constitutional reforms that were a product of a dismemberment and these include Kenya.

Some of the reasons courts give in nullifying reforms borne out of a dismemberment include procedural irregularity, a situation where one or two procedures have not been followed. Subject rule mismatch is said to be a situation whereby a single procedure is followed in passing legislations that need to follow a different procedure. Deputy Prime Minister Majara had already warned that passing the Omnibus Bill in its form by the 10th Parliament was flawed in that amendments that needed a referendum would be passed without going through a referendum, a move she said meant that entire reforms legislations as contained in the Omnibus Bill would be susceptible to legal challenges.   

Prof. Albert also says courts nullify constitutional reforms for violating a constitutionally specified time frame for the process.  “That is if the reform has not conformed with the time set,” he says. Head of the judiciary, Chief Justice Sakoane Sakoane also spoke at the symposium and said the composition of National Reforms Authority (NRA), a body mandated to oversee the reforms process was flawed and it therefore polluted the entire process.

Justice Sakoane echoes Prof. Nyane stating the fact that NRA was not a constituent assembly was problematic and says Lesotho must learn from countries that have travelled the same journey before it. “Many countries engage experts who write a draft and subject it to the people to see if it reflects the will of the people,” he says.  The NRA composition he maintains was flawed as it was dominated by politicians. “The membership of NRA was politically dominated and that is a problem because, politicians are politicians and will always behave like politicians and maximize on political power,” he states.

Judge Sakoane believes constitutional reforms must be led by experts to avoid what he describes as misguided ideas that came out of NRA. He notes 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,” he observes. According to Justice Sakoane the proposed amendments as contained in the Omnibus Bill/10th amendment to the constitution was not a fair reflection of Plenary II report that contained reforms as Basotho want them. He adds that the will of Basotho as contained in the plenary II could not be covered in the 10th amendment to the constitution given their magnitude.

“There are 16 areas covered in the report if I remember well. They include powers of the prime minister, the bill of rights, prorogation and dissolution of parliament, public funds, decentralization, the office of the First Lady, political conflict resolution mechanism, office of the king, formation of government and coalitions, preamble of the constitution, land, age of majority, chieftainship, religion and religious rights, application of traditional law and official languages. Given the magnitude and size of this reform, can you pass them in one bill or change the constitution and write a new one altogether?”    

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