Lawyer and activist Lemogang Nsuzi has accused the Lesotho Highlands Development Authority (LHDA) of hiding behind diplomacy while ignoring serious legal and constitutional violations.
“I cannot busk on my laurels against the tide of purely illicit and illegal conduct on the altar of sweet diplomatic ties, to the greatest prejudice of past, surviving, and future generations of Basotho,” Nsuzi stated in his replying affidavit filed this week.
He was responding to an answering affidavit submitted last week by the Lesotho Highlands Development Authority (LHDA) Chief Executive Officer, Tente Tente, in a court battle over the legality of the Lesotho Highlands Water Project (LHWP) Treaty.
Tente’s affidavit was filed in opposition to a lawsuit brought in February this year by local human rights organisation Equal Rights and Justice, together with Nsuzi.
The applicants are seeking a High Court order compelling the governments of Lesotho and South Africa, LHDA, the Lesotho Water Commission, and others to amend, or facilitate the amendment of, the LHWP Treaty and its annexures.
They argue that the Treaty should be revised to reflect the principles of equitable and reasonable utilisation and sustainable development of the LHWP river system. They also want both countries to adhere to internationally recognized water governance frameworks, including the Helsinki Rules (1966), the Berlin Rules (2004), the UN Convention on the Non-Navigational Uses of International Watercourses (1997), and the Revised SADC Protocol on Shared Watercourse Systems (2000).
The applicants further call for the harmonisation of the Treaty with Lesotho’s domestic legal framework, specifically aligning it with Sections 5, 6, and 13 of the Lesotho Water Act, as well as the Environment Act.
Alternatively, they seek a declaration that the LHWP Treaty is unconstitutional for fostering a discriminatory legal regime, which they claim is expressly prohibited under Section 18 of the Constitution.
In his affidavit, Tente argued that the applicants wrongly place national law above international obligations. He said he was advised, and believes it correct, that the case collapses when considered within the dualist approach that Lesotho adopts in relation to international and domestic law.
Under this doctrine, he explained, international law must be incorporated into national law through legislation, and national law cannot override international obligations.
“Generally, a state may not invoke its own national law, as the applicants have attempted to do, as a basis for repudiating an international legal obligation,” he said.
Citing legal advice, Tente referenced a principle of international law expounded by the Permanent Court of International Justice, which held: “It is a generally accepted principle of international law that in the relations between contracting parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty.”
However, Nsuzi hit back, stating it is inaccurate to claim that the LHWP Treaty is not subject to Lesotho’s national legal framework. He pointed out that Lesotho is a member of the Southern African Development Community (SADC), which recognises the “sovereign equality” of all its member states.
He further cited a ruling by High Court judge Justice Makara, who asserted that: “Be that as it may, over -emphasis is once again made that by operation of the supremacy of the Constitutional provision, any international law which has not been domesticated by an Act passed by the Parliament of the Kingdom, is null and void simpliciter. It appears that in the loosely translated version from the Sesotho language, the founders of this nation would not rest because they could visualise this as an act of undermining the sacrifices they made to secure the sovereignty of the country and bequeathed it onto their successive generations.”
Nsuzi concluded that a fair reading of Tente’s argument either admits that the LHWP Treaty is null and void within Lesotho or implies that it has somehow been incorporated into domestic law, which, he argues, it has not.
Tente’s objection “is therefore as strong as a sandcastle in a storm,” Nsuzi asserted.
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