Judges critical of Lesotho Parliament's work, punt constitutional changes

Lesotho’s current political bosses – and the country’s economy – have been dealt a new blow. The high court of Lesotho, sitting as a constitutional court, has ruled that plans for dealing with repayment of generous government-guaranteed loans made to two categories of officials, are discriminatory and unconstitutional. Everyone who was given such a loan will now have to be treated in the same way, with the government paying all remaining loans back to the bank, in full. The court also made a strong but unexpected call for constitutional changes that would ‘more meaningfully’ separate the legislature from the executive. The three judges further complained about the escalating number of cases that came before the courts challenging the validity of regulations. It was so bad that the judiciary was justified in feeling sceptical about whether parliament did its work properly in overseeing such regulations, the court said.

 

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One of the most controversial perks of being in Lesotho’s government – at least for the people who are not part of that establishment – is a loan scheme under which MPs and ministers have been able to borrow R500 000 from a bank. The loans were effectively interest-free for the legislators, because the interest was paid by government. The loan was supposed to be paid back over five years – the normal period between elections – and the government stood guarantor for repayments of these loans.

But what should happen when consecutive governments stayed in power for a much shorter period than five years? How are the loans to be repaid, particularly where someone who had taken a loan was not re-elected to parliament? After two recent elections the government paid not only the interest on all the loans that had been taken out, but also the balance of loans still outstanding.

Critics

Earlier this year the public accounts committee urged that the whole scheme should stop and quoted figures indicating that it had cost well over R100m so far. Many critics claim that such spending cannot be justified given the state of Lesotho’s economy.

Now Lesotho’s high court, sitting as a constitutional court, has given its views on some aspects of the controversial loan scheme. The case was brought by Fako Likoti, economic and political advisor to the previous Prime Minister, Pakalitha Mosisili.

Mosisili and his party were defeated in the most recent elections, and a number of MPs and other officials like Likoti, lost their posts. Others, however, continued to hold positions as MPs or became ministers in the new government,

Seize gratuities

What was to happen to those who still owed money on their loans? The new government decided that it would fully pay the remaining debts owed by former MPs. In the case of others, like Likoti, who had been top-level advisors for example, the government would seize the gratuities they were due and deduct any bank debt from those payments.

Likoti complained that this unlawfully discriminated between bank borrowers and offended the constitution on a number of grounds. The government, however, argued that it was ‘mere differentiation’ and thus lawful.

In a lengthy judgment delivered last week, the three judges agreed with Likoti, holding that he had proved his rights to freedom of discrimination, to equality and to freedom from the arbitrary seizure of property had all been infringed.

'Financial desolation'

Likoti made a number of allegations about the way he had been treated, and spoke about his ‘bewilderment and financial desolation’. In his view, the new Prime Minister, the Minister of Finance and other officials, were involved in a political vendetta against him. His loan was thus not paid by the government as it was intent on discriminating against him for political reasons. None of these allegations was denied in the government’s answering affidavit, he said, and thus should be accepted ‘as a fact’.

Likoti said the court should carefully consider its decision, aware of the ‘realities in (Lesotho’s) political landscape’.

According to the court, Likoti characterised this reality as ‘dominated by long, deep-seated hatred between the political formations (and) desire for vengeance against members of (the other party).’ Further, each party took the ‘earliest opportunity (to) victimise those who are opponents of the party in power or merely perceived as such’.

'Fatal'

The court held that the PM and the other officials against whom Likoti brought his application, did not answer the specific allegations made in the application. This was ‘fatal to their case’.

Having found that Likoti was the victim of unfair discrimination, the judges went on to make several other potentially explosive remarks not specifically related to this matter. They complained about the escalation in the number of cases brought to court to challenge the lawfulness of ‘regulation-based policy decisions.’ The court’s civil roll was now dominated by such cases and the judges said this justified scepticism about whether parliament properly examined such legislation before it became law. This scanty concern could be put down to the ‘composition of parliament and the relationship between the majority of its members and the executive’, said the court.

'Party line voting'

In the view of the judges, the constitution should now be reformed ‘in favour of a separation of the membership of parliament from that of the executive’. This would strengthen the separation of powers and the rule of law. It would also help maintain good governance and strengthen checks and balances against ‘possible excesses by the executive and mitigate the subjectivity inherent in party line voting.’

‘The end benefit would be a perpetual prevalence of stability, peace and stability for generations and generations to come.’

'Unjust enrichment'

Returning to the question of whether MPs did their job properly, the court said it did not appear that they ‘dedicatedly studied regulations’ presented to them or critiqued them properly. It was ‘sad’ that in this case MPs had benefitted from an unfair and discriminatory policy that violated the rights of other citizens and created opportunities for ‘the unjust enrichment (of) parliamentarians.’

The task of holding the executive to account against possible abuse of power should not be left to the courts alone, said the judges. They also needed reinforcement from parliament. ‘Ideally, non-governmental formations and media houses should also intervene impartially and in good faith.’ Failing this help, the courts would be ‘sacrificially lambs at the altar of those who have politically inspired alien comprehension of law and justice.’ Such officials had only a very short-lived opportunity to mislead the public and soon regretted the consequences of the ‘poison they brewed during their glorious times to denigrate judicial officers, capture the judiciary and undermine its independence.’

*'A matter of justice', Legalbrief, 1 October 2019