Trapped! Lesotho’s political crisis as an assurance dilemma

By Moletsane Monyake

Lesotho goes into yet another costly and unnecessary election in June – unnecessary because there was no reason to dissolve parliament after the current prime minister lost a vote of no confidence.

He should simply have been replaced. But, sadly, a weak king and subservient judiciary that pander to the self-preservation antics of the executive could not protect the constitution and the public interest.

Lesotho’s political crisis took a turn for the worse in November 2016 when the national executive committee of the Democratic Congress (DC), the largest party in the seven-party coalition government, suspended its leader and current Prime Minister Pakalitha Mosisili on a range of accusations including corruption.

Mosisili successfully got this overturned in the High Court and went on to suspend a majority of members of the national executive. Shortly thereafter, the Democratic Congress deputy leader, who was also suspended, formed a new political party and connived with opposition parties to unseat the prime minister through a vote of no confidence.

The prime minister boasted to all and sundry that he would call a snap general election if a no-confidence motion went through parliament. Many observers thought he was bluffing. Writing on Twitter, political science professor, Mafa Sejanamane warned that this scramble to retain power at all cost would constitute a ‘constitutional coup’, seriously undermining the already fragile constitutional democracy.

Vote of no confidence

On 1 March 2017, this motion was overwhelmingly approved in parliament, and true to his word, Mosisili advised the King of Lesotho to dissolve parliament instead of handing over power to the leader of the opposition in line with Section 83 (4) of the constitution.

This section provides, among others, that if the king considers that the government of Lesotho can carry on without a dissolution and that such a dissolution would not serve the interest of the country, “he may, acting in accordance with the advice of the Council of State, refuse to dissolve Parliament”.

Given the provisions of Section 83 of the constitution and the reasons I will mention shortly, most analysts expected the king to reject the prime minister’s advice or at the least, convene the Council of State to chart the way forward. The 13-member Council of State is established in terms of Section 95 of Lesotho’s constitution to assist the king in the discharge of his functions. It comprises the prime minister, two judges, heads of security agencies, opposition leaders, a member of the legal profession in private practice, the Attorney-General, the Speaker of the National Assembly, a representative of the College of Chiefs and a representative of the general public.

It was argued that the king would seek the advice of the Council of State having considered, among others, the fact that it is not in the best interest of Lesotho as one of the world’s poorest countries to hold a third general election in five years; more especially when there is an option for the government to carry on without a dissolution.

According to the Independent Electoral Commission of Lesotho (IEC), it costs at least 250 million maloti ($18 161 762) to run general elections. In light of these costs and the fact that the opposition-controlled parliament had refused to discuss the Appropriations Bill 2017/2018, the Council of State would probably have advised the king to appoint a leader of the majority party or coalition of parties as the next prime minister in accordance with the constitution.

Another expert opinion was that the king would realise that acceding to the clearly self-preserving advice of the prime minister, when there was an option to refer the matter to the Council of State, had the potential of tarnishing the image of the monarchy as a politically neutral institution and the unifier of the Basotho nation. It was, therefore, in the best interest of the monarchy and the king as the head of that institution to use the Council of State to protect its integrity.

The foregoing notwithstanding, the king heeded the advice of the prime minister and signed a legal notice dissolving parliament and setting a date for general elections on 3 June 2017.

Shocking constitutional court rulings

Two applications were lodged in the constitutional court to determine whether following a no-confidence vote, the king can dissolve parliament without consulting the Council of State and to what extent the minister of finance can use state funds without the Appropriation Bill being passed into law.

Again, analysts expected the constitutional court to rule in favour of the applicants for two reasons: first, it is patently illegal to have access to the consolidated funds without authorisation by the National Assembly. Second, the political uncertainty that a no-confidence vote created and the increasingly fragmented party system that yields unstable coalition governments provided a golden opportunity for the judiciary to assert its independence.

The constitutional court failed to seize this opportunity, choosing to dismiss both applications for reasons that shocked many in the legal fraternity. The court ruled that the minister can in fact make withdrawals from the consolidated fund without parliamentary approval of the budget. The king was also deemed to have acted constitutionally when he chose to accede to the self-serving advice of Prime Minister Mosisili.

It’s a collective action problem

All the actors involved in the decision to dissolve the parliament probably knew that this was not in the best interest of Lesotho. The question is why these guardians of public interest failed to protect that interest. To answer this question, we have to consider that where formal institutions are weak, which is the case in Lesotho, acting in the best interest of the public confronts a collective action problem. Fragile institutions create incentives for public officers, including those assuming the role of ‘guardians’, to pursue private interests at the expense of the common good.

In the context of weak state institutions, the specific collective action dilemma that key actors face approximates a ‘co-ordination’ game, which arises due to lack of assurance that individual actors will not get away with putting self-interest ahead of the common good. Indeed, by shaping expectations, strong institutions help to predict with a degree of assurance that in times of uncertainty — such as a no-confidence vote in the country’s history— all key actors will act in the public interest, first and foremost. When formal structures and rules are weak, there is a risk that actions that contribute to the common good will not be reciprocated. Under these conditions, the public-minded individual becomes the ‘fall guy’, the only sucker in a game in which self-interest is the rule, and regard for public interest an exception. The logic of self-preservation at all costs makes it impossible for individuals to act in ways that contribute to the greatest good for the greatest number.

The decision of Prime Minister Mosisili set in motion a chain reaction and gave the king his decision-making calculus. Given that the advice to dissolve parliament following a no confidence motion was the first in the history of Lesotho, it is possible that the current monarch wasn’t sure what to do when the chief executive whose decisions he has never queried, no matter how controversial, made a request to call a snap election. Importantly, the king wasn’t sure about the personal ‘costs’ of going against the advice of a sitting prime minister in pursuit of public interest. Indeed, his father, the late King Moshoeshoe II was twice dethroned and exiled (in 1970 and 1990) for refusing to endorse decisions of the chief executive.

What is more, even if you hold the title of king, you don’t want to be the only one paying for the costs of the public good of good governance. So you stick to your ceremonial duties and do what you always do when the prime minister presents a document for you to sign, even when there is a constitutional provision to decline the advice and call on the advice of the Council of State. You evade your responsibility to contribute to the public good of good governance and hope that when your decision gets challenged in court, judges will break the loop and act in the interest of the public. But you don’t realise that judges are also subject to the same structural constraints that made you shirk your own responsibility in the first place. If all relevant actors are trying to protect their own narrow interests — whatever they are— why should judges interpret the law honestly, in the interest of the public?

History matters

Prime Minister Mosisili’s decision to launch a ‘constitutional coup’ was motivated by the ‘experience’ that any Lesotho politician in his position would attempt to hold onto power using all means necessary. Indeed, three years ago, the then prime minister and current leader of opposition, Tom Thabane, prorogued parliament for nine months to avoid the looming no-confidence motion. Thabane’s decision was driven by the same logic of self-preservation first, public interests later that now informs Mosisili’s actions.  Furthermore, there are striking similarities between the decisions of both Thabane and Mosisili and those of previous Lesotho prime ministers, notably Ntsu Mokhehle, who mounted a parliamentary coup d’état to avert a no confidence vote in 1997. As some will recall, Mokhehle’s actions contributed to the bloody violence that brought the country to a halt and necessitated military intervention by South Africa and Botswana to restore order.

Conclusion

For better or worse, the self-serving actions of predecessors in similar situations provide a decision calculus for current actors. This creates a vicious cycle that is very difficult to break by making different decisions in future. The dilemma that key actors face is that the political costs associated with being the first to break the cycle far exceed the benefits. There are currently no incentives for any sitting prime minister to pay for the diffuse benefits of taking Lesotho out of this self-perpetuating crisis. Sadly, the constitutional reforms that SADC and development partners have suggested for Lesotho will not solve the assurance problem of good governance and development.

It is not the absence of appropriate rules that fuels Lesotho’s political problems, it is lack of assurance among key actors that laws are widely accepted as a guide for political decision-making. It is that experience that the monarchy will not break rank with the executive and that judges will make bizarre rulings to support decisions of the monarchy, so long as they fall in line with the wishes of the chief the executive. – Pambazuka News

Moletsane Monyake is a PhD researcher at the Centre for the Study of Corruption, University of Sussex, UK.

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