OPENING ADDRESS BY THE
HONOURABLE CHIEF JUSTICE M.L. LEHOHLA
at
THE CONFERENCE FOR
LAW REFORM COMMISSIONS
OF EASTERN AND SOUTHERN AFRICA –
11TH – 14TH OCTOBER 2010
Introduction
[1]
In the developing Africa today, “good governance” is a phenomenon
or concept that has become topical and a real challenge which faces
many emerging states with constitutional democracies. Since the
times of Socrates of ancient Greece, democracy through the ages
qualifies itself as “a government of the people, by the people for the
people.” If a people govern themselves, they elect persons to manage
institutions that provide, deliver and administer the delivery of
essential services like peace, defence, justice, education, health, food
production and all kinds of amenities – that is the essence of
“government for the people”!
[2]
Nature and Scope of Good Governance
The United Nations Development Programm (UNDP – 1997)
captures governance as:“The (good) exercise of political, economic and administrative
authority in the management of a country affairs at all levels.
Governance comprises the complex mechanisms, processes, and
institution through which citizens and groups articulate their
interests and exercise their legal rights and obligations.
… Good governance is therefore assessed by the following tenets:
participatory
engagement,
transparency,
accountability,
effectiveness, compliance to the rule of law, responsiveness to the
needs of the people.”1
***
[3]
Lesotho is a sovereign democratic Kingdom2 which since gaining its
political independence in 1966 has faced several serious challenges –
some political, some economic, some social; but the people of
Lesotho have stoically borne with fortitude the ills of poverty, hunger,
unemployment, disease and many other social vicissitudes.
[4]
A developing country like Lesotho depends upon “good governance”
for its political, economic and social development and this good
governance is premised upon “popular will” expressed through “free
and fair elections”. A democratic government is therefore founded on
the free and fair elections that are held periodically to gauge the will
of the people and to secure a fresh mandate.
[5]
Whereas the elections may be “free” in the sense that there is no force
or coercion and “fair” in the sense that the results of the elections are
a clear and satisfactory expression of the popular will, whether these
results are credible may be another matter of a value judgment which
depends upon many other factors such as voter-turnout, voter apathy
or despondency. Multiplicity of political parties3 may directly dilute
the popular will to such a critical extent that a victorious party only
acquires votes that are much less than the total votes of other parties
combined. Problems of authority and legitimacy immediately come to
the fore whilst an elected government usually has a majority in
Parliament and it wields executive power and controls the distribution
of state resources.
***
1
Agree – “Promoting Good Governance” – Principles and Perspective- See also Mabusetsa Lenka –
Local Government – A Vehicle for Good governance.
2
Section 1 of the Constitution of Lesotho 1993.
3
There are today over sixteen political parties registered at the Law Office and at IEC!
[6]
Credibility of election results depends upon a multitude of factors
singly or in combination. These are:(a)
the electoral model and legal infrastructure;
(b)
the integrity, independence and neutrality of the electoral
commission;
(c)
voter turn out – voter apathy/despondence;
(d)
transparency and openness in the electoral process;
(e)
accountability – due process;
(f)
justiciability of election issues;
(g)
fairness – natural justice;
(h)
stakeholder involvement/ownership;
(i)
political maturity and tolerance.
None of these virtues can be achieved or accomplished with
completeness, finesse or absolutism. Allegations of malpractices –
the game of politics being to gain victory by all means, excluding only
the illegal – come to the fore such as corrupt vote rigging, and other
nefarious practices.
[7]
4
Lesotho has sadly often experienced post-election bitterness and
vitriolic disgruntlement since 1966.4 This has brought about a culture
of “negative election-mania” which expresses itself often through
recalcitrant non-acceptance of defeat, acrimonious and vitriolic
litigation and mudslinging followed by selective delivery of services.
Voter apathy and or despondency has crept in with an end-result of
loss of interest by the citizenry in political affairs of the country and
by allegations of a non-fulfilment of election promises.
The 1966, 1970, 1985, 1993, 1998, 2002, 2007.elections have been followed by sad experiences. Whereas
no election can be without blemish, all effort must be exercised to cleanse election process of all
malpractices.
[8]
Notwithstanding that Lesotho is indeed a democratic state, periodic
elections must always be held to gauge public opinion and to refresh
political mandate, Lesotho needs a serious voter education; it needs a
drastic review of its electoral model and other legal infrastructures in
order to attract more confidence in the electoral process and arouse to
more active participation in the public affairs.
[9]
It must be noted that credibility of election results is of critical
importance to ensure good governance; once the veracity and
credibility of election results are questioned or doubted, the authority
and indeed legitimacy of the government to rule tend to bear the
brunt.
[10] The results of an election are in reality a manifestation of public
endorsement of one political manifesto over others. Great
expectations and lofty aspirations follow these ambitious manifestos
and it is the non-fulfilment of the electoral promises that arouses
negative responses such voter apathy as despondence, disillusionment
and formation of splinter parties after vitriolic intra-party squabbles –
which land in court at the end of the day.
***
Courts of law
[11] Established by the Constitution and vested with all judicial power,5
the courts of law play a critical if not pivotal role in the process of
good governance. Courts ensure that all Acts of Parliament are
consistent with the Constitution and that they do not violate the Bill of
Rights; courts ensure that all executive and administrative power is
not abused but exercised fairly and within the parameters of the law6.
[12] It must be recognized that, no matter how activistic the courts of law
may aspire to be, the courts do not and should make law.7 If a law is
unjust, absurd or bad or is antithetic to good governance, the courts
5
Section 118.
See Baxter – Administrative Law; de Ville – Judicial Review of Administrative Action.
7
This is the principle of Separation of Powers (Montesquieu’s Spirit of the Law)
6
can only do the best in the circumstances and decline interpreting such
a law as to give absurd results, but only fair and reasonable ones.
[13] It is in the post – election litigation that the courts are often called to
interpret electoral laws as “courts of disputed returns.” In reality, as
it turns out, the courts cannot solve what essentially are political
disputes. The IEC therefore has a sacred duty to ensure that the
election process is free and fair and credible in a true sense. A
reformed electoral law that is simple to use, and that is understandable
and transparent to its users is all that is necessary to bring about
credible results acceptable to all.
[14] As recommended by the High Court of Lesotho and the Court of
Appeal in the Marematlou Freedom Party vs Independent
Electoral Commission, case the dissatisfaction with the election
results under a Mixed Member Proportional Representation was
perhaps due to the misinterpretation of the nature of the electoral
model which as a result needs to be reviewed as a matter of urgency
simplified and be made to be more transparent admitting of no real
possibility of manipulation.
***
Political Parties
[15] Though not an organ under the Constitution of Lesotho, a “political
party”8 is an institution which plays an important role in the
governance of the country. A political party that wins elections is
often called upon to form a government.9 A political party needs to
practice and dispense democracy in its own constitutional structures
and processes. A political party that lacks a deep and ingrained
democratic culture cannot automatically reform its culture when in
government. A wise man says: “… charity begins at home…”. We
often hear of allegations of “…ho raha leri…”, or “…tlapa –letheletse…”10 Integrity, political maturity and political tolerance are
8
It is a defined as an organization registered under societies Act and whose purpose is, or one of whose
purposes is to secure the election of candidates as members of the National Assembly – Section 2 of the
National Assembly Election Order No.10 of 1992.
9
Section 87 of the Constitution.
10
These sayings describe a self-centered individual who excludes and forgets his supporters once he is in
plenty.
necessary attributes for all political leaders who have national interest
at heart.
[16] In Africa today, the African Union through its “Peer Review
Mechanism” places much stress and importance “good governance”
as an important attribute of a democratic government. Democracy is
not a mere isolated event that occurs at election time; democracy is a
systematic process that indeed transcends even the five – year life
span of a government. Good governance – sustains a democratic rule
and depends upon genuine responsiveness to public need,
participation and involvement of all stakeholders, it exudes
transparency and accountability at all levels of state apparatus.
***
Definition of Good Governance
[17] Mapetla and Petlane define it as
“The manner in which government exercises political power,
governance is always related to institutions and structures that are
used for exercising power; governance suggests also that all
relevant public decision-making processes have to be considered;
governance also implies that all the implementation capacity for
government action in a country is of relevance; and governance
encompasses also the relation between the government and the
public.”
and “good governance” has the following characteristics: A political system that allows opportunities of participation to
and for all its citizens
 A political system that provides for effective, smooth and stable
transfer of power and periodic renewals of the mandate of
leadership through regular, free, fair and transparent elections.
 Strong, independent and stable public sector, legislative and
administrative structures.
 Transparency, predictability and accountability of public
institutions and actors therein.
 Effective public sector management, including stable economic
policy and effective resource planning mobilization, deployment
and development.
 An enabling economic framework that encourages surplus
generation and equitable distribution of resources to address
the problems of poverty and overall development, and
 Adherence to the rule of law and respect for fundamental
human rights.
[18] In most African countries, “good governance” is often blighted by
negative forces such as dishonesty, inefficiency, corruption, nondelivery of services, nepotism, unprincipled patronage and arrogant
irresponsiveness to public need. Between elections, the public
concerns are often neglected, if not forgotten. Some governments
survive till the next election not because they are performing well but
because of clear majorities they commandeer in Parliament under
strict control of party whips and party caucuses!
[19] “Rule of law” and “good governance” - through unwritten “in black
and white” in the Constitution – are fundamental entitlements of the
common man. No living soul can vote for bad governance and for
injustice. Bad governance only benefits but a few and it is essentially
unconstitutional.
[20] Whereas bad governance is antithetical to true democracy, “good
governance” feeds and nurtures democracy; it promotes it and nestles
it within its principles all the time prudently determining that “those
who exercise power must be subjected to checks and balances to
ensure accountability and responsibility in a democracy;” indeed
“the principle of separation of powers” essentially guarantees that
those who exercise power are not actually the same ones that test the
validity of such exercise.
[21] “Good governance” is premised on consensual and participatory
involvement: namely, that a people have consented to be ruled and to
be involved in their governance for their own good and participatory
governance may be defined as “…empowering citizens to influence
and to share control in the processes of public decision making that
affects their lives”.11
Local Government
[22] Lesotho needs a strong local government at grassroots level; a local
government that is adequately resourced to deliver the essential
services to all people in the country irrespective of locality or party
affiliation. Some local communities are often forgotten in the
development programmes but we cannot deny the fact that everybody
needs food, water, health, medicine, electricity, roads, and other
amenities of life.
[23] Section 106 (1) of the Constitution of Lesotho reads:“106. (1)
Parliament shall establish such local authorities as it
deems necessary to enable urban and rural communities
to determine their affairs and to develop themselves.
Such authorities shall perform such functions as may be
conferred by an Act of Parliament.
Such an Act is Local Government Act No. of 199712 which
comprehensively established local government with four tiers of
governance – community, urban, municipal and district councils13.
What is important is that the local authorities be sufficiently
empowered, and resourced in order to address the needs of the local
communities.
11
Malena C. – Building Political will for Participatory Governance (2009).
See also Local Government (amendment) Act – 2004.
13
Hoolo Nyane – Decentralising the Central State in work for Justice – July 2010, See also Local
Government Elections Act No.6 of 2004
12
[24] In South Africa, section 118 of the Constitution reads:
“118.
(1)
A provincial legislature must
(a) facilitate public involvement in the
legislative and other processes and its
committees and
(b) conduct its business in an open manner and
hold its sittings and those of its committees in
public.” (my emphasis)
This ensures a representative, open and participatory democracy; it
guarantees accountability, transparency and public involvement.14 The
public also has a right to comment upon all bills amending the
Constitution.15
[25] Messrs Victor Shale and Mpiti Moholisa in their monograph –
“Public Participation – An Essential Link for Local Government in
Lesotho”16 argue that public participation is an indispensable
component for a successful local government because it promotes
proper service delivery, sound policy formation and good governance
at local government level.
[26] Nyalunga has this to say
“…in a nutshell, public participation is an important ingredient
for good governance and quality service delivery. Moreover public
participation is a constitutional matter, going beyond granting the
right to vote, in essence public participation is a political right
afforded to all citizens …”17.
[ 27] Indeed section 20 of the Constitution of Lesotho is directly on point
and should once more be cited in full – it reads:14
Section 116 of South African Constitution
Sections 74 (ibid); see also section 72 (National Council)
16
See Work for Justice – July 2010 – Revisiting Local Governance in Lesotho.
17
Nyalunga D – “An enabling environment for public participation in local government” – Online
http://www.academic journals.org/INGOJ.
15
“Right to participate in government
20.
(1)
(2)
Every citizen of Lesotho shall enjoy the right –
(a)
to take part in the conduct of public affairs,
directly or through freely chosen representatives;
(b)
to vote or to stand for election at periodic elections
under this Constitution under a system of universal
and equal suffrage and secret ballot;
(c)
to have access, in terms of equality, to the public
service.
The rights referred to in subsection (1) shall be subject to
the other provisions of this Constitution.”
Indeed, without participation of the citizenry, the capacity of
government to provide public goods and services is severely
handicapped and compromised. All citizens must be informed about
important aspects of local public services, the responsibilities and
duties expected of them and the environmental (ecological) factors
that may affect the provision and quality of these services.18
[28] UNDP19 has stated that political freedom and communal participation
are part of human development …. Political freedom and the ability to
participate in the life of one’s community are capabilities that are as
important for human development as being able to read and write and
being in good health. People without political freedom – envisaged in
such activities as being able to join associations and form and express
opinion – have far fewer choices in life. In fact, to them democracy is
meaningless and is but an empty rhetoric. A country with a forgotten
people has abandoned its sacred responsibility as a state.20
18
Marschall – “Citizen Participation and the neighbourhood context: A new look at the coproduction of
Local public goods. (2004)
19
UNDP Developing Democracy in Fragmented World.
20
Rousseau’s “Social Contract” still has value and merit.
[29] It is in this scenario that all stakeholders: political leaders (in and out
of government), courts, public officers, institutions, commissions,
NGO’s and civil society must work together to address national issues
that transcend sectoral or political expediencies. Issues of justice, of
law and order, of food security, of health, of education, of
environment, of communication, of infrastructure must all be given
the priority they deserve.
[30] Basic to this endeavour is the legitimacy of government, its authority
and capacity to deliver. If national or local elections are sometimes let
to be flawed and marred by corrupt malpractices, the whole state
apparatus becomes polluted with inefficiency and national interest
and in the process development suffer.
***
Lesotho Law Reform Commission21
[31] Lesotho has a Law Reform Commission whose main functions are set
out as follows:
“7.
(1)
The functions of the Commission are –
(a) to review the laws of Lesotho with a view to
systematic development and reform of law,
including in particular –
(b) to consider such proposals for the making of laws
as are referred to the Commission by the Minister;
(c) to carry out such other law reform projects as are
referred to the Commission by the Minister; and
(d) to consider proposals relating to the consolidation
of laws or the repeal of laws that are obsolete or
unnecessary; and
(e) to make reports to the Minister arising out of any
21
Lesotho Law Reform Commission Act No.5 of 1993
such review, consideration or project and, in such
reports, to make such recommendations as the
Commission thinks fit.”
[32] The crucial role of a Law Reform Commission in a developing
country cannot be underestimated. A Law Reform Commission must
be a “think-tank” in the updating of law; with a good research
capacity, the Law Commission should be accessible to all and should
mount independent empirical studies that address the public concerns
and needs. Act of Parliament preceded by research often prove
appropriate in addressing social problems.
[33] Our Commission must learn and share experiences of other sister
Commissions ALRAESA because the world today is a global village
and ALRAESA is and should be a family with common interests,
common problems and challenges.
[34] We look forward with greatest of expectations to benefit from the
discussions in this august Conference which presents a rare
opportunity for Lesotho to host and for all of us to do much learning
and soul - searching and reflection. The Government of Lesotho and
the country at large will benefit a lot from vibrant and dynamic
discussions taking place on this occasion.
[35] Law has always been an engine for political, economic and social
change and development. Development of law and compliance with
it, create a climate conducive to the rule of law within which good
governance and development can flourish. Despotism, kleptocracy
and corruption thrive where bad governance exist and where
corruption is the norm and integrity is but a chimera – a scant factor
obeyed more in the breach than observation.
[36] Secondly, elections which are free, fair and credible are the key to
new horizons and to new benefits which all our societies have an
inalienable and fundamental right to enjoy22. No government has a
right to govern badly or unfairly or to plunder state resources or to
deliver services unevenly or in a selective manner excluding other
people or sections of the community. “Ho raha leri” or “ho re: tlapa
22
See also
le theletse” is against “botho” (ubuntu) because in Sesotho “…bana
ba monna ba arolelana hlooana ea tsie…” … “…mpa ha e aroloe ka
lehare…” “…Sejo se nyane ha se fete molomo…”.
Code of Ethics
[37] In an ideal scenario, codes of ethics for the executive and
administrative officials, for parliamentarians and for judicial officers
should be put in place to reinforce the upholding of the proper
standards of integrity and honesty in the public domain. Good
governance – like corporate governance – needs to be nurtured and be
sustained through multilateral effort and commitment.
[38] Free and fair elections serve no purpose if they are not followed by a
“good governance” which is responsive to the aspirations and to the
needs of the people. Elections must be a means towards an end and
not an end in itself. Voter education should revitalize more public
participation in public affairs. Involvement and concern – instead of
voter apathy and disillusionment – should be actively evolved at
national and local levels. Voter apathy can ultimately bring about a
sad situation where an elitist minority rules the silent majority.
Conclusion
[39] In today’s democratic governance, people are no longer mere subjects
but human beings who enjoy certain fundamental and inalienable
rights and freedoms, and the role of government is circumscribed
under the constitution, a constitution which casts certain duties and
obligations regarding delivery of services, respect for human rights
and maximization of all human freedoms.
[40] In the end, good governance sustains democracy, promotes the rule of
law and protects human rights; it energizes overall development and
finally brings about stability, peace and engenders a real sense of
wellbeing and self-worth.
END