The Minister of Home Affairs, Lebona Lephema, recently declared 12 voluntary associations subversive organizations. The decision is based on powers conferred to him under section 10 of the Internal Security Act, No. 24 of 1984.
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The declaration instantly means that Terene ea Mokata-lirope, Terene ea Chakela, Letlama (Seakhi), Letlama le le Kubelu, Liala Mabatha, Khang Kholo, Sepheri, Phula-Bobete, Parachuti, Tornado, Mahanapuso, Terata ea hlaba and any other organisation of a similar nature is illegal and banned.
The Act says “the Minister may, by notice of a Gazette, declare any organisation unlawful if in his opinion that organisation is involved in subversive activity or in promoting or encouraging it”.
The declaration, the Act says, “may be in the form of a name or description of such organisation”.
It makes it a criminal offence to solicit or invite “financial or other support for an unlawful organisation or knowingly make or receive any contribution in money or otherwise to the resources of an unlawful organisation”.
It is also a crime to invite any person “to become a member of an unlawful organisation or to carry out on behalf of such an organisation, order, or direction given, or requests made, by a member of that organisation”.
In assessing the legal consequences of the declaration it is critical to recall Thomas Hobbes who said in the state of nature life was too cold, too rough and unbearable for both the weak and the powerful. It was the survival of the fittest. Then the ancient people finally came together and formed a “social contract.”
They freely divested themselves of all rights and powers and entrusted the same to the State, the Leviathan. Then the government re-allocated rights and duties to the people who freely became subjects.
This contract impliedly binds successive generations ad infinitum. Thus those who live in the modern organisation are impliedly contracted to obey the rules of that state. There cannot be two Leviathans in one state.
Despite being associated into one large group of citizenry, the people sought to express themselves in small grounds. They assembled and associated peacefully and freely. They exercised fundamental freedoms of expression, peaceful assembly and freedom of association. In the context of Lesotho, these rights are guaranteed in sections 4, 14, 15 and 16 of the Constitution, 1993.
In terms of section 4 and specific inbuilt limitations to sections 14, 15 and 16 these rights are not absolute and may be limited by the rights of others, interests of defence, public order, public morality, public safety, public health and public interest.
It is in this constitutional context that the Honourable Minister’s declaration on the 12 organisations should be seen.
The law requires every remedial action taken by the state to be appropriate and effective. It must strike effectively to the very root of the legal problem. This principle is encapsulated in the principles of necessity and rationality, which call for necessity and rational connection between government action and its legitimate purpose.
In this case, the question is whether the minister has done so appropriately and effectively. Would this decision weed out the impugned behaviour once and for all? Are the voluntary associations the causers of unremitting battle or sheer branches to the main deep-rooted stem?
Are they not the mere tip of an iceberg or the vengeful signs of inner uncomforted sadness and lack of healing?
Is the government not supposed to show these people some love instead of judging them? Should it not be taking these people for counselling sessions?
The government must first comprehend fully the whole history and rationale behind this behaviour in line with the legal maxim that the application of the law and remedial action must match the underlying reason/ mischief or problem.
It is an open secret that some of the reasons for the unending wars which the government ought to have studied are jealousy, mistakes, distrust, prejudgment, and killings in the name of self-defence.
The lack of trust induces constant fear in concerned parties and is from time-to-time resolved by pre-empted killings without proper investigation of the existence of real evil motives from the opposite side. Others say they take revenge for the blood of their innocent relatives and members that was spilled.
Others say they want a “ceasefire” but they have no alternative but to defend their lives endlessly while hoping for the war to end one day.
On the other hand, the government should not lose sight of the fact that some of these people are artistes pursuing their careers and trying to earn a living for themselves and their loved ones. Unfortunately while entertaining their supporters war usually erupts.
These are just some of the seemingly valid reasons for the unremitting war which the government ought to have fully investigated and engaged those concerned before making a decision that deeply affects them and their dependents financially. The new regulation will affect their intellectual properties and others’ rights including those of their customers who buy their music and attire.
Making an arbitrary decision without consulting them and giving them a fair hearing renders the government’s decision procedurally flawed, albeit it might stand on the merits. It is a sound principle of our law that before making a public decision affecting one in his property, livelihood and other vested rights the decision must be preceded by a fair hearing.
It may not cost the government a penny to show these people some love while dragging them to attend the hearings in line with the principle of humanity/Botho/Ubuntu provided in section 8 of our Constitution.
The State must abandon its decision aforesaid and/or have that decision reviewed and set aside by the Courts. It must start the process afresh by consulting and giving a fair hearing to all the affected factions.
The state may be surprised to find the answer to all these problems is treasured within these people themselves. Then the state may be able to make an informed decision whether to abolish or retain these organisations.
Alternatively, it may sue all the associations in a civil litigation seeking in the main a declarator that all these organisations are unlawful. However, the government must be alert to handle the aftermath appropriately and effectively.
Adv Sehapi is a practising lawyer
