The process of constitutional amendments is a delicate undertaking, one that demands utmost caution and adherence to the principles that define a nation’s fundamental law. In Lesotho, the ongoing constitutional reform process, aimed at amending the 1993 Constitution, has raised significant concerns among civil society, particularly the Transformation Resource Centre (TRC). The crux of the issue lies in whether these proposed changes are indeed amendments, or if they risk dismembering the very fabric of our Constitution.
The TRC has rightly pointed out that while the government’s efforts to advance the national reforms project are commendable, there is a growing fear that these reforms could be used as a Trojan horse to undermine the Constitution. This fear is not unfounded. The proposed changes, which appear under the guise of amendments, seem to go beyond mere modifications. They threaten to alter the basic structure of the Constitution, potentially setting it on an entirely new constitutional course.
One of the most alarming aspects of this process is the apparent disregard for the judicial pronouncements that should guide it. The recent Court of Appeal decision in Democratic Congress and Others v. Puseletso and Others [2024] LSCA 1 is a landmark judgment that underscores the limitations on Parliament’s power to amend the Constitution. The court highlighted the basic structure doctrine, which asserts that certain fundamental aspects of the Constitution cannot be altered by mere amendments. These include the separation of powers, the independence of the judiciary, and the protection of fundamental rights. Any attempt to bypass these principles would not only be unconstitutional but also a disservice to the nation.
The TRC’s letter to the Speaker of the National Assembly emphasizes the importance of distinguishing between legitimate amendments and unconstitutional dismemberments. Alterations that fundamentally change the Constitution’s structure or its core values cannot be considered amendments. They are, in effect, an attempt to rewrite the Constitution—something that requires a much more rigorous and inclusive process than the simple majority currently being used in Parliament.
Public participation is another critical element that has been inadequately addressed in this process. The TRC and other civil society organizations were given a mere 48 hours to prepare submissions on the voluminous constitutional amendments. Such a timeframe is not only unreasonable but also suggests a lack of genuine interest in engaging the public. The Constitution is a document of the people, and any changes to it should reflect the will of the people, not just the interests of the political elite.
The TRC’s concerns are not merely theoretical. The Centre has observed instances where the procedures for amendments have been flawed, and where the substance of the amendments themselves raises serious constitutional questions. For example, the proposed changes could undermine negative parliamentarism, which honors the role of the King in government formation—a basic feature of Lesotho’s constitutional monarchy. Moreover, the misuse of the simple majority to push through these changes without adequate scrutiny is a dangerous precedent that could erode the rule of law.
In light of these developments, it is imperative that Parliament reconsiders its approach. The TRC has rightly called for the establishment of a Constituent Assembly, composed of experts and representatives from across society, to draft a new Constitution that reflects the will of the nation. This process should be transparent, inclusive, and respectful of the basic structure and features of the current Constitution.
Lesotho’s Constitution is more than just a legal document; it is the foundation of our democracy and the protector of our rights. Any changes to it must be made with the utmost care and with full respect for the principles that underpin our democratic system. The TRC’s letter is a timely reminder that constitutional reforms should not be used as a tool for political expediency. Instead, they should strengthen the rule of law, protect fundamental rights, and ensure that the Constitution remains a living document that serves the people of Lesotho.
In conclusion, we echo the TRC’s call for vigilance. The proposed constitutional amendments must be carefully scrutinized to ensure they do not undermine the very foundations of our democracy. The future of Lesotho’s governance depends on it.
