Maseru- Transformation Resource Center (TRC) says that the government is tempering with original constitution design rendering mega constitutional amendments into complete division. This comes after the minister of Justice and Law, Mr. Richard Ramoeletsi tabled two sections of Omnibus Bills on 6 May 2024.
In a bid to “Safeguard the Constitutional Reforms from Continuous Litigation and Political Zero Sum Games,” the TRC organized a Symposium on November 30, 2023. This event aimed to steer constitutional reforms back on track, highlighting factors that could expose the process to repeated litigation due to flawed procedures intrinsic to democratic governance.
Despite this, TRC lambasted government of Lesotho for disregarding sound counsel on engaging in constitutionally legitimate reforms. “These missteps have led to numerous litigated cases and structural pushbacks. The Kingdom of Lesotho has faced scrutiny whenever it attempted reforms, with the process often ending up in legal challenges,” part of TRC statement said.
TRC, advocates for thorough constitutional reforms rather than incremental changes, issued a position on the 10th and 11th Amendment Bills to the Constitution. It argues that these bills, tabled in the National Assembly on 6 May 2024, are not true amendments but rather dismemberments of the constitution’s original design.
TRC is concerned that the amendments severally and as a whole constitute and amount to constitutional dismemberments that undermine the basic structure doctrine, basic features doctrine and the text of the constitution.
TRC further explained that the proposed constitution changes exceed the boundaries prescribed under section 85 of the constitution such that they do not just amend but dismember fundamentally the structure of the constitution.
“We find it appropriate to distinguish between primary constituent and secondary constituted amendment powers, alterations to the constitution that amount to dismemberment because they alter the basic structure and the basic features or even amount to constitutional replacement can only be done through the use of the constituent powers,” said TRC.
The proposed amendments, according to the TRC, exceed the boundaries prescribed by the constitution, fundamentally altering its structure. They exploit the rules of constitutional amendment, testing legal constraints to create a revised constitution under the guise of ordinary amendments.
TRC distinguishes between primary constituent and secondary constituted amendment powers, arguing that alterations amounting to dismemberment should only be done through constituent powers, not the powers contained within the constitution.
Regarding the National Reforms Authority (NRA), TRC clarified that it was never established as a Constituent Assembly or Constitutional Reform Commission. The NRA, established by the NRA Act No. 4 of 2019, was tasked with coordinating the implementation of reforms under seven thematic areas but lacked a mandate for constitutional revision.
There is also contention around the misrepresentation of the Court of Appeal’s judgment concerning the amendments. “The Minister of Law’s assertion that the Court ordered the Government to re-table the amendments is seen as a misrepresentation, potentially dragging the judiciary into political manoeuvring,” added TRC.
In terms of the act, the Authority had to implement reforms under seven (7) thematic areas: constitution, Parliamentary, Justice Sector, Security sector, Public sector, Economic and Media.
“There is a popular but highly misleading rhetoric that is favored by the Minister of Law that the Court of Appeal has ordered the Government to re-table the mega constitutional amendments in the National Assembly,” TRC stated.
Lesotho Tribune sought comment from government of Lesotho, but no comment was received until publishing of this article.
TRC argues that the proposed amendments fundamentally alter the constitution’s structure and values. It recommends that to effect these changes, including those not captured in the Omnibus Bill, a new constitution should be drafted.
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The proposed amendments have sparked a debate over the integrity of Lesotho’s constitutional process, with calls for transparency, caution, and adherence to constitutional principles.
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