Lesotho: Environmental Law Context Report

JUDICIAL ENVIRONMENTAL LAW TRAINING

AUGUST 2019

 

Country Context Report

Lesotho

 

A series of extracts and resources compiled by Godknows Mudimu, postgraduate student at the University of Cape Town with supervision from Amy Sinclair, Managing Editor of the African Legal Information Institute (AfricanLII).

19 August 2019

Contents

1     Sources of environmental law in Lesotho.. 2

A     Domestic constitution and legislation.. 2

B     Domestic executive decision-making.. 2

2     Environmental law topics in Lesotho.. 3

A     Energy, minerals and extractives. 3

i.      Mining (diamonds, sand, clay, building stone) 3

ii.     Energy. 4

B     Coastal, marine and fisheries. 5

C     Agriculture, plants and forestry. 6

D     Climate change, natural disasters and air quality. 7

i.      United Nations Framework Convention on Climate Change. 8

ii.        Natural Disasters. 9

E     Wildlife. 10

F      Protected areas. 11

G     African customary law and rights of indigenous peoples. 12

 

1       Sources of environmental law in Lesotho

A       Domestic constitution and legislation

This is a non-exhaustive list of the most important legislation affecting environmental law issues in Lesotho.

 

Legislation title and URL

Legislation and Policy Documents relating to the Environment

1.   Environment Act 2008 (No. 10 of 2008).

2.   Lesotho National Environment Policy (1998)

3.   State of the Environment in Lesotho (1997)


Legislation and Policy Documents Relating to Water

1.   Water Resources Management Policy

2.   Lesotho Water and Sanitation Policy 2007

3.   Lesotho Water Sector Information Management System Portal (LWSIMS)

4.   Water Act (2008) 

5.   Lesotho Water and Sanitation Policy (2007)

6.   Roadmap to Completing Integrated Water Resources Management and Water Efficiency Planning (2007) 

7.   Lesotho Highlands Water Project Treaty (1986)


Important Links

8.   Food and Agriculture Organization of the United Nations http://www.fao.org/countryprofiles/index/en/?iso3=LSO

9.   Ministry of Water https://www.water.org.ls/acts-and-policies/

10. Lesotho Biological Diversity https://www.cbd.int/doc/world/ls/ls-nbsap-01-en.pdf

 

B       Domestic executive decision-making

1.   Department of the Environment

2.   Ministry of Forestry, Range and Soil Conservation

·    The Department of Soil and Water Conservation  providing technical guidance to land users in order to conserve water and reclaim the degraded land base, realize production potential by planning and establishing recommended land management practices through structural and biological measures.

·    Department of Forestry aims to increase the contribution made by trees to livelihood security and environmental protection.

3.   Ministry of Water and Environmental Affairs[1]   

·    Water Commission  - develops, updates and monitors the implementation of water policy, water and sanitation legislations and strategy; preparation and coordination of all water sector management activities, including international waters. Provision of direction on water resources management and utilization.

·    The Department of Rural water Supply (DRWS) - responsible for water supply and sanitation infrastructure development and service delivery in the rural areas.

·    The Department of Water Affairs - manages the quantity and quality of surface and subsurface water resources of Lesotho for socio-economic development of Basotho.

·    The Lesotho Lowlands Water Supply Scheme Unit (LLWSSU)  - oversees the implementation of the Lesotho Lowlands Water Supply Scheme in accordance with the provisions of the Lesotho Water and Sanitation Policy of 2007 – Statement 2.

2       Environmental law topics in Lesotho

A       Energy, minerals and extractives

The information in the following section is a series of extracts drawn from the sources listed below:

1.   African Legislation Atlas, available at https://www.a-mla.org/countries/25?name=Lesothoundefined, accessed 4 August 2019. 

2.   Lesotho Review (Commerce Industry and Mining), available at https://www.lesothoreview.com/contents/commerce-industry-mining/, accessed 4 August 2019.

i.          Mining (diamonds, sand, clay, building stone)

Mining activities have expanded substantially in the past three decades as new diamond mines have opened. While the contribution of the sector to GDP was just 1.0 percent between 1985 and 1994, by 2006-2015 it had grown to about 6 percent, and currently makes up some 9.2 percent of Lesotho’s GDP.

While mining plays a significant role in promoting economic growth, it does not generate a great deal of employment due to its capital-intensive nature, the high degree of mechanisation, and weak linkages with other economic sectors. Current employment figures in the diamond mining industry stand at around 3 000 Basotho. Mining has grown to become one of Lesotho’s most important sources of revenue. For this reason, adding value mining products is promoted to ensure that growth is more inclusive and to increase the resilience of the country’s medium-term growth prospects. In addition, the government is looking to put in place stronger policies and strategies for managing its available mineral resources and is reviewing the mining tax regime to cater for windfall taxation.

By the end of 2018, there were four diamond mines and two sandstone quarries in full production. Lesotho has an estimated 405 kimberlite bodies in the form of pipes, dykes or offshoots. One of the benefits to operating a mine in Lesotho is that it is located in the heart of southern Africa, and an array of mining skills and services are available from neighbouring countries such as South Africa and Botswana. While diamond mining remains the main focus of the industry, in 2017 the government signed agreements with two mining companies to prospect for coal and shale gas. The first phase of shale gas prospecting involves research on the geological structure of the southern region, which will assist in the targeting of preferred sites for drilling, while the second phase entails the quantification of the gas resource. There is potential to find gas reserves of up to 10 trillion cubic feet. Coal exploration will take place in Mohale’s Hoek at Qhalasi and Matebang, with a view to determining whether there are significant deposits for viable commercial exploitation.[2]

ii.         Energy

The Lesotho Energy Programme contains six ready-to-build projects for the electricity sector in Lesotho. Three will mitigate existing emissions, and three will help “climate-proof” essential infrastructure. The programme will accelerate the nation toward its goal of secure, low-emission, renewable energy production by increasing the supply of domestic, clean renewable sources and extending grid-access electricity to more households. It will also build climate resiliency into threatened infrastructure. In addition to moving the nation toward these important objectives, the economic and environmental co-benefits of the project are significant; they include: strengthening the livelihoods of highly vulnerable households (including women- and child-headed households), creating temporary jobs, and slowing the trend of rapid deforestation.

To reduce its carbon emissions from the electricity sector, Lesotho must address two primary objectives namely: reducing coal-dominated imports from South Africa. This objective can be met by adding low-emission, renewable generation plants to domestic electricity sources, and through efficiency measures that reduce line losses and peak demand. 2. Reduce the use of traditional household fuels, especially wood, charcoal, and dung. This objective can be addressed through accelerating the delivery of cleaner sources of electricity to remote villages and rural populations through the national grid. According to the Blue-Sky Model, wood fuel emits 1.5 kg of CO2eq per kWh consumed;4 by contrast Lesotho’s national grid delivers energy at 0.22 kg of CO2eq per kWh. This objective also serves other important goals of reducing deforestation and eliminating negative health effects of smoke inhalation and accidental household fires.

B       Coastal, marine and fisheries

The information in the following section is a series of extracts drawn from the sources listed below.

1.   Lesotho National Action Programme in Natural Resource Management, Combating Desertification and Mitigating the Effects of Drought.

2.   Food and Agriculture Organisation of the United Nations, Fisheries and Aquaculture Department: Lesotho Available at http://www.fao.org/fishery/facp/LSO/en, accessed 4 August 2019.

Regulation of fisheries is currently covered under the Basutoland Fresh Water Fish Proclamation (1951). Some of the areas addressed in this proclamation are: (a) Close seasons and prohibited fishing; (b) Use of explosives; (c) Prohibited means of capturing fish; (d) Damaging property for purposes of taking fish; (e) Obstruction of waters. In addition, the legislation provides penalties for all areas addressed. Fishing and fish farming currently play very insignificant roles in the economy of the country. Capture fisheries as well as the rural aquaculture are of the subsistence type and their main role is in food security. However, cold-water aquaculture, while still at its initial stage, already indicates potential for becoming an important foreign exchange earner for the country.

The diversity of fish species in Lesotho is very limited, consisting only of 17 species. Nine of these are indigenous while eight have been introduced. The indigenous species with potential for development of capture fisheries are: small mouth yellow fish (Barbus aeneus), largemouth yellowfish (Barbus kimberleyensis), Orange River labeo or mudfish (Labeo capensis), Mud mullet or Moggel (Labeo umbratus) and sharp tooth catfish (Clarias gariepinus).

Exotic species of fish have been introduced into Lesotho since 1912. The initial introductions were mainly aimed at improving capture fisheries while later introductions were made with the main objective of increasing productivity in fish farming. Species introduced to boost up capture fisheries are: Rainbow trout (Oncorhynchus mykiss), brown trout (Salmo trutta), Common carp (Cyprinuscarpio), largemouth bass (Macropterus salmoides) and bluegill sunfish (Lepomis macrochirus) 

Common carp is currently the main species produced in warm-water fish farming. The sharp tooth catfish has been tried at experimental level and indicated good results. The species is however not being produced due to unreliable fingerling production. Cold-water fish farming of rainbow trout takes place in the Lesotho Highlands Water Project (LHWP) area. A cage culture unit has been set by a private company to produce trout for exporting to the Republic of South Africa. Trout production is at a pilot stage allowing maximum production of 300 tonnes of fish per year. Stocking of fish occurred in 2006 while first harvesting was in 2007.[3]

C       Agriculture, plants and forestry

The information in the following section is a series of extracts drawn from the sources listed below.

1.   New Agriculturist, Available at http://www.new-ag.info/en/country/profile.php?a=2208 accessed 3 August 2019).

The Kingdom of Lesotho is a small landlocked nation with the distinction of being situated within the borders of South Africa. Lesotho is characterized by a strip of arid arable land on the western border, and steep and rugged mountainous terrain in most parts of the country. The country has four agroecological regions: the lowlands, Senqu River Valley, the foothills and the highlands (mountainous area).[4] Due to its high elevation and mountainous landscape Lesotho has been dubbed 'The Kingdom in the Sky'. However, the unforgiving terrain means that only ten per cent of the land can be cultivated, making farming incredibly challenging. Despite these challenges, the government believes agriculture plays a major part in the fight against poverty.[5] Although most of Lesotho's population engage in subsistence farming, almost one-quarter are dependent on food aid and 70 per cent live below the poverty line. Maize, wheat, pulses, sorghum and barley are the primary crops grown but less than 30 per cent of the country's needs are met through cereal production compared to 80 per cent in 1980. According to the International Fund for Agricultural Development (IFAD), declining agricultural production - caused by severe land degradation, reliance on rainfed agriculture and unfavourable weather conditions - is one of the principle causes of poverty in rural areas. A lack of investment in agriculture and a lack of income-generating activities are also major challenges.[6]

Traditional farming techniques and overgrazing have been identified as major causes of land degradation in Lesotho. Furthermore, low soil fertility, land degradation, limited arable land and climate change-related risks (such as droughts and floods) remain key constrains.[7] The interaction of these factors with socioeconomic factors increases the vulnerability of agricultural production in the country to these factors. To halt land degradation, restore biodiversity and promote sustainable use of natural resources, FAO and local communities have implemented various interventions ranging from brush control, restoration and establishment of new grazing associations, stone-line construction, high-density grazing technology, re-seeding of rangelands and the protection of water sources through the construction of animal drinking points.[8]

D       Climate change, natural disasters and air quality

The information in the following section is a series of extracts drawn from the sources listed below.

1.   Prevention Web, Available at https://www.preventionweb.net/countries/lso/data/, Accessed 4 August 2019.

2.   Lesotho National Strategic Development Plan: Towards An Accelerated and Sustainable Economic and Social Transformation 2012/13 – 2016/17 Available at https://www.gov.ls/documents/national-strategic-development-plan-concept-note-2012-13-2016-17/.

Lesotho has mounted numerous initiatives to address the climate change challenge. This is exemplified by, among others, the National Strategic Development Plan (NSDP), which identifies ‘to reverse environmental degradation and adapt to climate change’ as one of its key objectives. Fundamental issues include protecting water sources through integrated land and water resources management, as well as methods of boosting the environment’s natural resilience to climate change, conserving biodiversity and exploring environmentally friendly production methods.

Achievements under the NSDP include the rehabilitation of areas affected by soil erosion, with 16 dams, 1 224 kilometres of stone lines, 120 kilometres of diversion furrows and 333 620 cubic metres of gully structures built between 20212/13 and 2015/16. Furthermore, forest cover rose from 13 550 hectares to 53 105 hectares over the same period.

The Lesotho Meteorological Services (LMS), which falls under the Ministry of Energy and Meteorology, is the coordinating agency charged with monitoring and reporting on weather, climate and climate change issues. A National Climate Change Committee (NCCC), which serves as an advisory body to the LMS, was formally established in 2013 to coordinate the response to climate change.

i.          United Nations Framework Convention on Climate Change

Lesotho was one of the first countries worldwide to ratify the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. It is thus committed to working towards halting the advance of climate change by eliminating or reducing its causes, as well as making adaptations to the emerging climate.

The UNFCCC requires Lesotho to submit periodic reports on levels of greenhouse gas (GHG) emissions, climate mitigation and adaptation activities, vulnerability analyses and policy recommendations. Furthermore, the Lima Call for Climate Action requires countries to develop and communicate their Intended Nationally Determined Contributions (INDCs) towards achieving the stabilisation of GHG concentrations in the atmosphere. As a Least Developed Country (LDC), special provisions apply to Lesotho’s INDCs to reflect its special circumstances.

Against this backdrop, Lesotho submitted its INDC report in September 2015. This was followed by the Nationally Determined Contribution (NDC) of December 2017 – an improved version of the INDC. Effectively, the NDC details adaptations and mitigation actions that Lesotho will take to tackle its growing vulnerability to climate change and GHG emissions. In pursuance of Article 2 of the Paris Agreement, this will contribute towards achieving the global long-term goal on adaptation and efforts to limit global average temperatures increases to less than 1.5oC above pre-industrial levels.

Lesotho is committed to unconditionally lowering her net GHG emissions by 10 percent by 2030 against the Business-As-Usual (BAU) scenario.  Reduction is attainable on condition that external support (finance, investment, technology development and transfer, and capacity building) is made available to cover the full cost of implementing the adaptation and mitigation actions. With external support, a combined total emission reduction of 35 percent below the BAU emission level can be achieved by 2030.

Incorporating a multi-sectoral approach, Lesotho’s plan to mitigate GHG emissions is built on the following pillars:

●    Adoption of climate-smart agricultural practices for greater food security and higher famers’ incomes

●    Limiting GHGs through afforestation, reforestation and protecting forests for their economic and ecosystem services

●    Energy efficiency measures, deployment of renewable energy sources in power generation (hydro, solar and wind), promotion and dissemination of clean energy technologies (efficient cook-stoves and LPGs) to reduce overreliance on fuel wood

●    Adoption of modern, efficient and advanced technologies in industry, transport and buildings

●    Sustainable waste management systems, including solid waste management, wastewater recycling, composting of biodegradable waste and possible methane recovery from landfills.

ii.         Natural Disasters

Lesotho's landlocked mountainous setting with thin regolith cover and poor economic situation make it vulnerable to hazardous events associated with climate such as drought, floods, strong winds, heavy snowfall, and severe frost.[9] Lesotho's Disaster Risk Management System has progressively improved with the enactment of the Disaster Management Act of 1996 and the Disaster Management Operations Manual (UNDP 2007). Nevertheless, emergency response remains the primary focus of current disaster management activities. Lesotho is increasingly facing serious challenges in food insecurity due to erratic rainfall, cyclical droughts, climate change, limited arable land, and weak capacities of national agencies to provide necessary social services. The United Nations Development Programme (UNDP) works with the Government of Lesotho to enhance capacity in disaster risk reduction (DRR). Some of its efforts have included the development of a Draft DRR Policy; establishment of Disaster Management Teams at district and village levels; and, provision of training on disaster risk assessment and reduction (UNDP 2007).

E        Wildlife

The information in the following section is a series of extracts drawn from the sources listed below.

1.   Living National Treasures, (Accessed 5 August 2019).

2.   Maliba Hotel ‘Fauna of Lesotho’ (Accessed 13 August 2019).

The Maloti Minnow Pseudobarbus quathlambae (FishBase) is a critically endangered freshwater fish unique to Lesotho. The Drakensberg River Frog (or Sani Pass Frog) Amietia dracomontana was formerly considered a distinct species known only from Lesotho, but a recent article considers it a synonym of the more widespread Delalande's River Frog Amietia delalandii.

Insects found exclusively in Lesotho include the Lesotho Meadow Katydid Conocephalus basutoanus (IUCN), a grasshopper Sphingonotus basutensis (OSF),the ants Plagiolepis simoni and Camponotus basuto, a cockroach wasp Dolichurus Basuto, a weevil Basothorhynchus endroedyi and a plume moth Platyptilia sochivkoi. Over 30 new species of owlet moths were described from Lesotho in 2005 as were several new geometrid moths.

F        Protected areas

The information in the following section is a series of extracts drawn from the sources listed below.

1.   Convention on Biological Diversity:  First Country Report Lesotho, Available at https://www.cbd.int/doc/world/ls/ls-nr-01-en.pdf (Accessed 4 August 2019).

2.   Biodiversity a-z, UN Environment World Conservation Monitoring Centre Available at  https://www.biodiversitya-z.org/content/lesotho.pdf, (Accessed 4 August 2019).

Lesotho is a Party to the Convention on Biological Diversity and as such has been active in implementing the requirements of the Convention, particularly Article 6.[10] Although the recommended target for each country is 10%, Lesotho still has less than 1% as the area under formal protection. This is made of the Sehlabathebe National Park, Tsehlanyane National Park, Bokong Nature Reserve and Masitise Nature Reserve. Some attempts are being made to increase this area. These attempts are facilitated by projects that are funded by the Global Environment Facility such as the Conservation of Mountain Biodiversity in Southern Lesotho (CMBSL) and the Maloti Drakensberg Transfrontier Project. These protected areas do not cover all the significant ecological areas of the country. Many of them are also very small in size. As such they cannot successfully accommodate faunal species that require large territories.[11]

Lesotho forms the greatest part of the globally recognised biodiversity hot spot - the eastern mountains or as are commonly known in the region, the Drakensberg-Maloti mountains of Southern Africa. Seventy percent of these mountains are in Lesotho. The vegetation of these mountains is divided into two types, the Afro-montane and Afro-alpine. The Drakensberg-Maloti mountains are important for their high-altitude flora, estimated at 3,094 species; of which 30% is endemic to the mountains. The eastern alpine areas of Lesotho also support a network of unique high-altitude bogs and sponges, a system of wetlands found nowhere else in the world. These high-altitude wetland systems include hydrophilous, aquatic and semi-aquatic communities, with a high proportion of endemic species. The wetland systems also play a crucial role in the hydrological cycles. Particularly, their retention and slow release of water, these high-altitude wetlands help stabilise the stream flow, attenuate flooding, reduce sedimentation loads and absorption of nutrients.

Wetlands Lesotho has recently acceded to the Ramsar Convention. It has listed the Letsa-la-Letsie wetland in Quthing district as the wetland of international significance. This wetland is the source of the Quthing river, which is a major tributary of Senqu or the Orange river. The Orange river is one of the largest rivers in southern Africa. Most Wetlands in Lesotho are headwaters of rivers and streams. Their conservation is important especially in the light of the Lesotho Highlands Water Project which harnesses water for sale to South Africa. Water is therefore an important economic asset for Lesotho. These 4 wetlands also provide a habitat for many bird species.

G       African customary law and rights of indigenous peoples

The information in the following section is a series of extracts drawn from the sources listed below.

1.         Constitution of the of Lesotho, with Amendments 1993

2.  I Shale ‘The Law and Legal Research in Lesotho’ Available at https://www.nyulawglobal.org/globalex/Lesotho1.html#_Sources_of_Law, (Accessed 4 August 2019).

3. Department of Environment, Available at http://environment.gov.ls/home/#.XVMfXOgzaUk, (Accessed 4 August 2019).

Lesotho has a dual legal system consisting of customary and general laws operating side by side. Customary law is made up of the customs of the Basotho, written and codified mainly in the Laws of Lerotholi whereas general law consists of Roman Dutch Law imported from the Cape and the Lesotho statutes. 

The Constitution of Lesotho recognises the need to adopt policies aimed at advancing the natural and cultural environment of Lesotho.[12] The Constitution of the Kingdom of Lesotho entrenches an express recognition of the importance of the environment and the need to adopt policies aimed at protecting the environment.[13] It provides as follows:

‘Lesotho shall adopt policies designed to protect and enhance the natural and cultural environment of Lesotho for the benefit of both present and future generations and shall endeavour to assure to all citizens a sound and safe environment adequate for their health and well-being.’[14]

The above constitutional provision is a clear recognition of the importance of the environment, not only to the current population, but to future generations.


 

[4] Nhemachena, C.; Matchaya, G.; Nhlengethwa, S. 2017. Agricultural growth trends and outlook for Lesotho. ReSAKSS-SA Annual Trends and Outlook Report 2016. International Food Policy Research Institute (IFPRI); International Water Management Institute (IWMI).

[5] New Agriculturist Available at http://www.new-ag.info/en/country/profile.php?a=2208, (Accessed 4 August 2019).

[7] C Nhemachena, G Matchaya and S Nhlengethwa ‘Agricultural growth trends and outlook for Lesotho’ (2017) ReSAKSS-SA Annual Trends and Outlook Report 2016, International Food Policy Research Institute (IFPRI), International Water Management Institute (IWMI).

[8] Food and Agriculture Organisation (FAO) Available at http://www.fao.org/3/au196e/AU196E.pdf, (Accessed 4 August 2019).

[9] M M Letsie and S W Grab ‘Assessment of Social Vulnerability to Natural Hazards in the Mountain Kingdom of Lesotho’ (2015) 35(2) Mountain Research and Development 115-125 Available at https://doi.org/10.1659/MRD-JOURNAL-D-14-00087.1

[10] Convention on Biological Diversity:  First Country Report Lesotho, Available at https://www.cbd.int/doc/world/ls/ls-nr-01-en.pdf (Accessed 4 August 2019).

[11] S Damane and T Qhotsokoane, Available at https://www.cbd.int/doc/world/ls/ls-nr-03-en.pdf.

[12] Constitution of the Lesotho, with Amendments 1993 s 36.

[13] The Constitution of the Kingdom of Lesotho with Amendments 1993, s 37.

[14] The Constitution of the Kingdom of Lesotho with Amendments 1993, s 37.