Hopolang Mokhopi
The Lesotho Highlands Development Authority (LHDA) has chastised non-profit organisations (NGOs), accusing them of initiating dubious legal disputes against public bodies in pursuit of political agendas.
LHDA Chief Executive, Tente Tente, alleges that these organisations act in contravention of the Societies Act and the Societies Rules, under which they claim to be operating.
Mr Tente makes these assertions in an answering affidavit filed in opposition to a Constitutional Court application by local NGO, Equal Rights & Justice, which seeks a review of the Lesotho Highlands Water Project (LHWP) Treaty, signed by Lesotho and South Africa in 1986 which ensures supply of water from Lesotho to South Africa.
The LHDA boss argues that the NGO’s application is misplaced because the Treaty is an international agreement governed by international law and, therefore, cannot be challenged under Lesotho’s Constitution or any other domestic law.
In their application filed in March, Equal Rights & Justice seeks a declarator that Article 5(1) and Article 18(9) of the Phase II Agreement under the LHWP Treaty are inconsistent with Section 2 of the Lesotho Constitution. They argue that these provisions effectively abrogate constitutional requirements, thereby undermining the foundational legal framework of the country.
Furthermore, they want the court to compel the LHDA and other respondents to amend the LHWP Treaty and its annexures. They argue that this will ensure alignment with key principles of international water law, specifically the equitable and reasonable utilization of water resources and the principle of sustainable development concerning the River System of the LHWP. These amendments, they say, should include incorporating the Helsinki Rules of 1966, the Berlin Rules of 2004, the United Nations Convention on the Non-Navigational Uses of International Watercourses (UN Convention 1997), and the Revised Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) of 2000.
Additionally, the petitioners requests that the Treaty be harmonised with domestic law in Lesotho, particularly reconciling Sections 5, 6, and 13 of the Lesotho Water Act with the provisions of the LHWP Treaty, and ensuring consistency between the Treaty and the Lesotho Environment Act to align national and international legal obligations.
Alternatively, the petitioners argue that the LHWP Treaty is unconstitutional due to its discriminatory regime, which they claim violates Section 18 of the Constitution of Lesotho. This section prohibits any discriminatory practices, and the petitioners assert that the Treaty’s provisions perpetuate such discrimination.
Finally, they seek an order of mandamus (ordering a person to perform a public or statutory duty) directing the respondents to harmonise the LHWP Treaty with the Orange Senqu River Commission (ORASECOM) Agreement. The LHWP and ORASECOM Agreements both pertain to the management of the Orange-Senqu River Basin, a shared watercourse spanning multiple countries. The petitioners argue that both agreements must be harmonised in accordance with Article 8 of the UN Convention on the Non-Navigational Uses of International Watercourses, which emphasizes cooperation among riparian states in managing shared water resources.
However, Mr Tente has strongly opposed the application, criticising the applicant’s legal standing due to alleged non-compliance with the laws governing NGOs.
“It shall be argued that the applicant is non-compliant with the regulatory environment of both the Societies Act and Societies Rules and must not enjoy standing in the court for want of compliance with its regulatory environment,” Mr Tente argues.
“The applicant bears a compromised legal standing to sue if it is non-compliant with both the Societies Act and Societies Rules. There is need to police voluntary organisations by statutory bodies in order to uphold the rule of law. A non-compliant organisation enjoys no protection or audience before courts of law.
“There is no evidence before the Registrar General of Societies pointing to the fact that the applicant is compliant with Regulation 9 of the Societies Rules of 1967. Failure to comply with the Act and its auxiliary laws attracts punitive and/or criminal sanctions per Section 30(1)(f) read with (4) of the Societies Act. The applicant’s proven illegal conduct of its affairs renders it ineligible to participate in this litigation, let alone seek a remedy before the court of law.”
The LHDA, Lesotho Highlands Water Commission, Trans-Caledon Tunnel Authority, Ministry of Natural Resources, Attorney General Rapelang Motsieloa, South African Department of Water and Sanitation, Government of South Africa, Southern African Development Community: Water Division, Orange Senqu River Commission, Southern African Development Community, and the United Nations Lesotho are cited as the 1st to 11th respondents respectively in this application.
Mr Tente contests the inclusion of these respondents, arguing misjoinder on the basis that they are unrelated to the litigation and the reliefs sought.
“It is clearly inconceivable why and how these entities were cited and of what relevance they are to the relief sought by the applicant. The suit against a sovereign state and its government agency in the context of this case leaves quite a lot to be desired and points towards the vexatious and scandalous nature of this litigation.
“The irregular citation and/or suit of all these agencies was none other than a melodramatic and sensational measure employed by the applicant to project a political agenda. This irregular joinder of these agencies bears the potential of affecting the collegial relations between Lesotho and its counterparts. It is, with respect, a reckless litigation that aims to compromise regional development between the country and its multinational stakeholders.”
Mr Tente also argues that the Water Act and the Environment Act, which Equal Rights & Justice relies upon, cannot be applied to the Treaty. He asserts that the Constitution of Lesotho is likewise inapplicable, and therefore the application is ill-conceived.
“The issues raised are polycentric at an international level, and to force sovereign states to subject themselves to the constitutional values of this jurisdiction is legally unsustainable and runs against the core principles of diplomacy between states. This is clearly a political case.
“Unless all the international instruments (cited by applicants) are domesticated in Lesotho, they are unenforceable at the national level. A bilateral treaty cannot be extinguished by a domestic court and have effect on the rights of two sovereign states, and this seems to be the fundamental flaw that belies the reliefs sought.”
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