When Lesotho’s squabbling political parties bound themselves to a talk-shop, what – if anything – were the legal implications of that agreement? This question has become crucial in Lesotho, and it is made more complex by the fact that the idea of serious negotiations comes from the Southern African Development Community (SADC). Since SADC’s involvement is hardly a secret, what standing does any agreement related to the negotiations have in international law?
Behind these apparently theoretical questions lies a very real problem. When it brokered a deal to ensure that all parties would join in constitutional talks, the Maseru government included a clause that opposition members who had fled the country could return to participate in the discussions and, crucially, they would not be prosecuted on their return.
That hasn’t gone down well with the relatives of people killed during Lesotho’s most turbulent recent period, 2014 – 17. They blame some of those now returning to participate in constitutional talks for being behind the killings. And they have argued that clause 10 of the agreement, which provides that no prosecutions will take place, is unconstitutional.
The case putting this point of view was argued in June, July and August, and a decision was handed down last week by three high court judges sitting as a constitutional court.
In a nutshell, the court found that the memorandum of understanding, signed by the parties, was not an international treaty despite the involvement of SADC in the arrangements.
The court also held that however noble the motives lying behind the agreement may be, this was not relevant when a judge had to consider its validity and meaning. The memorandum of understanding ‘cannot be elevated to (the) status of law’ because to do so would be to undermine the authority and supremacy of the constitution.
The judges found that clause 10 was unconstitutional but stressed that their decision should not be viewed as trespassing on the ‘turf’ of the executive or state policy, nor as ‘dislocating’ Lesotho’s current reform process.
The agreement had been concluded between the government of Lesotho and the country’s then opposition parties. According to the judgment, the role played by SADC in supporting and finalising the agreement did not turn the document into a ‘treaty’ under international law. A number of steps would have been needed to ‘convert’ this agreement into a treaty, but these steps had not been taken.
SADC had not been a signatory to the agreement: there was no official stamp nor the signature of any designated official. ‘Its international dimension remains confined (to the) background.’ There was no evidence at all that this was a treaty between Lesotho and SADC.
On top of the fact that there was ‘no SADC treaty’, the purported treaty had never been domesticated in Lesotho by an act of parliament. Parliament was, however, at liberty to adopt the agreement in the future if it so wished, said the court.
The most important feature of the disputed clause 10 was that it provided that criminal prosecution of former leaders of opposition parties, like Mothetjoa Metsing of the Lesotho Congress for Democracy, now living outside the country, would be halted until negotiations and discussions on reforms had been completed.
Through this provision, the powers that were exclusively held by the director of public prosecution were ‘usurped’ by the executive, ‘acting in collaboration with the opposition’, the judges found.
Despite finding that clause 10 was unconstitutional, the judge said that they were sure their finding would not prove a block to discussions. ‘We remain convinced that the spirit in the (agreement) appears to be a constructive way forward … (to) national healing, reconciliation and unity. We reiterate our earlier position that the problem is intrinsically political and needs a political solution rather than a legalistic one.’
- The decision was written by Judge E F M Makara, with the agreement of the rest of the bench: Acting Chief Justice M Mahase and S N Peete
- A Matter of Justice, Legalbrief, 24 November 2020