The struggle against the 9th Amendment

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Even without the Amendment, Lesotho’s democracy already has many limitations. The limitations include the fact that we have, among our politicians, those who have no problem imposing even more limitations, like the Ninth Amendment.

The Amendment is anti-democratic for two reasons, at least. First, through it, MPs of the day arrogated themselves society’s fundamental right and power to vote for a government of their choice. In the system Basotho adopted at independence, MPs appoint a government at the beginning of a life of a parliament on the basis of a mandate given at most recent elections.

In the wake of the Ninth Amendment, MPs can now bring such a government down —maybe rightly so — and agree on another one among themselves without seeking a fresh mandate from society.
In this way, the Amendment has the effect of marginalising society from participation in decisions about who rule them, and how they are ruled. It adds to many other ways in which MPs have robbed the electorate of their rights and power to choose who rules them.

Second, the Ninth Amendment is anti-democracy and anti-democratic because, through it, MPs of the day arrogated themselves the electorate’s right and power without consulting the owners of the right, the electorate.

In this way, the Ninth Amendment is an addition to a list of Amendments which MPs passed without a plebiscite despite the fact that the amendments were related to questions of how we are ruled, and how the country is developed.

For example, in 2002, through the Fourth Amendment, MPs of the day increased their number from 80 to 120 without a referendum. Justifications that MPs used for this increase had nothing with extending, or safeguarding, democracy; and the way the amendment was achieved had nothing to do with enhancing democracy and protecting the right of the electorate. Even the stability we were promised never materialised.

Also, not only have MPs violated the Constitution by failing to establish the National Planning Board—a body central to development of Lesotho’s society and economy—but, even while the Board waited to be born, in 2011, on their own, MPs went further to eunuch it through the Sixth Amendment.

Any democrat would be aware—and conscious—that, as things stood before the proposal for, and promulgation of the Ninth Amendment there were already several instances of MPs’ actions and decisions that were anti-democracy. Accordingly, such a democrat would not propose, or support, an additional amendment aimed at disempowering society even further, as the Ninth Amendment does.

It therefore remains to explain, first, why MPs of the day proposed and promulgated the Ninth Amendment; and, second, why some of them are now adamant in their appeal against the Constitutional Court’s ruling. This with a view to ensure the Amendment remains in Lesotho’s statute book.

The media quoted the MP who proposed the Ninth Amendment, Adv Lekhetho Rakuoane, as having said that the Amendment he proposed was meant to protect banks and pension funds, and save for national development the money that would otherwise be used for elections. In short, in proposing and passing the law, MPs acted in the interests of banks and pension funds, as well as in the interest of national development.

After the Constitutional Court declared the Ninth Amendment illegal, journalists quoted Adv Rakuoane as having said that Lesotho had been turned into a laughing stock due to the country’s parliament constantly failing to last its five-year term, due to no-confidence votes. By implication, the Ninth Amendment is intended to remedy this.

The media also quoted some lawyers, analysts and politicians who support the Ninth Amendment as saying, by declaring the Amendment as unconstitutional, the Constitutional Court forced the country to hold ‘‘unnecessary’ elections running into unbudgeted millions of maloti.’

In reply: As to MPs arrogating themselves society’s right in order to protect banks and pension funds, we know MPs are neither communists nor Marxists. However, even non-communists and non-Marxists would object strongly to the idea that the electorate send politicians to represent them in parliament but, in fact, parliamentarians see their duty as to protect banks and pension funds.

Regarding the expense of letting society to exercise their right and power to elect a government of their choice, politicians should not choose for us between development and democracy, as they did in the 1970s. Besides, what is expensive is not elections. Instead, what is costly is living in a society that, at least, makes attempts at being a properly-working democratic state, in accordance with our Constitution.

To cut expenses on any of the pillars of a democratic state is to give it another character than the character of a democratic state where the electorate have rights and power — such as the right to vote for a government when an existing one falls. Describing elections as ‘unnecessary’ when a government has fallen fits fascist and other forms of dictatorships, not democracy.

If MPs want to save money, there are many opportunities available to them to do so without robbing society of their rights. They include trimming the size of our parliament.

Also, MPs cannot use the absence of a budget as an excuse for denying societies their right to vote for a government when MPs have brought an existing government down. When they chose a proportional representation system without us, they should have known it raised possibilities of coalition governments that may fall before end of parliaments’ terms. They should budget for such eventualities every year.

Neither should parliamentarians rob society of their rights on grounds that Basotho have become a laughing stock because of the frequency at which we went to elections between 2012 and 2017. The people of New Zealand elect a government every three years. Nobody laughs at them. Besides, the shorter the period between national elections, the closer we would be to being truly democratic.

To those of us among the electorate who have become disillusioned with, and have lost all trust in, politicians, the Ninth Amendment looks like—and maybe it is—a law by which MPs of the day sought to serve their own interests: safeguard their jobs and perks against possibilities of fresh elections in the event of a fall of government engineered by themselves.

Other than being anti-democracy in general, the Ninth Amendment is also inimical to specific characters of the political system Basotho agreed to in 1966.

In the 1960s Basotho elites accepted liberal democracy as a system under which Basotho would be ruled partly because the system promised rights to individuals and society. Cardinal among such rights was society’s right to elect a government of their choice.

Basotho also agreed to liberal democracy because those who touted the system said, as much as possible, the system distributes power—or strives to distribute power—evenly between, and within, institutions. This helped to first, to establish and maintain the stability of the system, and to ensure that none of the groups in power would easily violate, suppress, or take away, Basotho’s rights.

What the authors and supporters of the Ninth Amendment did in their amendment was to undermine these principles and objectives of the system. For example, with parliament, they removed some powers of the PM without instituting a corresponding—and commensurate—reduction in their own power.

As a constitutional law expert, Professor Hoolo ’Nyane has observed this unbalanced power in parliament as a recipe for instability. It means that now MPs can propose motions of no confidence knowing full well that, if they succeed to bring the government down, their jobs and perks are safe because they have shorn the PM of powers to force them to do what many of them fear most—to face the electorate and seek a new mandate.

Our wish is not to have a dictatorship of 120 elected MPs every five years as the Ninth Amendment wants to happen. Our right and power to elect a government when an existing one falls—now taken away by MPs—must be restored to us.

MPs should not look to South Africa only when they want salaries and perks that are out of proportion to everything in Lesotho. For our benefit, they should also copy—and improve—instances where South Africa’s MPs enhance South African electorate’s participation in their democracy.

In February this year South African MPs amended their procedures to make it easier for the electorate to approach parliament when they are unhappy. This has opened the door for society to challenge MPs when they make bad and self-serving laws.

We have long called for an amendment to our Constitution—or a change in procedures of Parliament—that would have a similar effect. Without such an amendment, if the Appeal against repeal of the Ninth Amendment succeeds, we will remain unable to challenge bad and self-serving laws, and our right to elect a government when an existing government falls before the end of parliament’s term will be stolen for good.

Prof Motlatsi Thabane