GOVERNMENT AND CHANGE IN LESOTHO, 1800-1966 Government and Change in Lesotho, 1800-1966 A Study of Political Institutions L. B. B. J. Machobane M MACMILLAN © L. B. B. J. Machobane 1990 Softcover reprint of the hardcover 1st edition 1990 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 33-4 Alfred Place, London WC1E 7DP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published 1990 Published by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world British Library Cataloguing in Publication Data Machobane, L. B. B. J. 1941- Government and Change in Lesotho, 1800-1966: A Study of Political Institutions. 1. Lesotho. Politics, history I. Title 320.9681'6 ISBN 978-0-333-51570-9 ISBN 978-1-349-20906-4 (eBook) DOI 10.1007/978-1-349-20906-4 To My Wife 'Mats'epo 'Malillo Evodia Morolong Machobane for her inspiration, support and sacrifice Contents List of Tables viii Preface ix Acknowledgements XV Notes on the use of terms xvii 1 Institutions of Government and Control of Power Among the Basotho of the Mohokare Valley (c. 1750-1870) 1 2 The Subjugation of the Kingdom 29 3 The Establishment of the National Council, Its Constitutional Status and Challenges During the First Two Decades of Its Existence (1903-20) 76 4 Commoners' Political Agitation and the Dilemma of the Chieftaincy 126 5 The Regency and the Reforms 188 6 The Establishment of the Legislative Council 234 7 The Placing of the Westminster Model 266 Notes 307 Bibliography 345 Appendices 351 Index 359 vii List of Tables 1.1 Genealogy of the Royal Line of Bakoena of Lesotho 28 viii Preface This book is a revised version of a doctoral thesis that I submitted to the Faculty of Law at the University of Edinburgh, for which the degree was awarded in 1986. Whilst some chapters have been condensed, the original study has otherwise been extended in scope, and a chapter has been added. The general purpose of the book has been to study the institutions of government from the year 1800 - about the time the process of state formation became evident - to 1966, when Lesotho, having become a British dependency in 1868, became independent. An effort has been made to depict indigenous institutions: the chieftaincy as an institution of political leadership; the traditional counsellors according to their various functions; the pitso (the all-male public assembly; and the makhotla (courts or councils) and their functions in the formulation of policy, law-making, and dispute settlement. An attempt has been made, first, to analyse their character and appraise, from a historical viewpoint, their competence in the pre­ colonial era; second, to appraise their continuing use and com­ petence during the period from 1868 to 1966, when a Legislative Council began to operate. By the 1830s, when Lesotho had been consolidated into a state, its founder, Morena e Moholo (or King) Moshoeshoe I, effectively adapted the pre-lifaqane institutions of government to cement his political achievement. Inspired by his political tutor, Mohlomi, the son of Monyane, he made peace and justice the foundations of his kingdom. He made use of a hierarchy of chiefs, all of whom had their makhotla (courts or councils) and settled his subjects' disputes under their respective territorial jurisdictions according to the laws and customs of the land. These chiefs were under obligation to attend Moshoeshoe's pitso and makhotla, and to fight in his wars. In turn he held himself accountable to these chiefs for his public actions and policies. He was subject to customary law and custom. He was sensitive to the popular will. And he made the pitso the hallmark of freedom of speech. Lesotho became a British dependency in 1868 amidst confusion from the point of view of the Imperial Government as to the purpose for extending jurisdiction over it. It was not clear as to whether the ix X Preface aim was to colonise or whether it was to protect it. Although the British authorities of Commonwealth Constitutional Law later asserted that it was a crown colony, the High Commissioner Sir Philip Wodehouse, who had originally negotiated the relationship with Morena e Moholo Moshoeshoe I, had accepted the kingdom's request that land should not be alienated. That understanding had been interpreted by the Basotho and some colonial administrators to mean that land had not been ceded to the British Crown and hence Lesotho was only a protectorate. In Lesotho that distinction was of political significance. It meant that the indigenous government would continue to rule and the colonial administration would take charge of external affairs. The latter was expected to protect and not control. The confusion over the Territory's constitutional status thus led, haphazardly and without clear consideration of policy, to 'Parallel Rule'. The Morena e Moholo and the Resident Commissioner (who was termed Governor's Agent until 1884) governed as virtual equals. It was a relationship of convenience whereby constitutional questions were interpreted by each in a manner that suited the occasion, and often inconsistently. During the period from 1868 to 1871, when the colonial adminis­ tration had not yet established itself and even the constitutionality of proclaiming Lesotho a British Territory was being questioned by the British Crown Law Officers, ·the indigenous government governed as though the kingdom was still independent. Institutions of government worked without marked deterioration from the way they worked in the past. The period during which Lesotho was under the Cape of Good Hope rule, 1871 to 1884 (the so-called 'Government by Proxy') was significant in two respects. First the Cape of Good Hope bore down hard on the indigenous government. Bent on destroying the chief­ taincy, it sought to disrupt Sesotho customary law and custom, with some assistance from the Paris Evangelical Missionary Society. Col­ onial officers turned the all-male public assembly, the pitso, into a forum for declaring unpopular regulations and decisions. That led to a deterioration of the pitso as an institution for policy formulation and the expression of popular opinion. Then, too, put under allow­ ances, in lieu of collecting taxes for the colonial administration, the chieftaincy generally turned its sense of accountability upwards, from their subjects to the colonial officers. The agrarian boom of the 1870s, and its corollary factor, migrant labour into the white settler Preface xi colonies of the South, generally eroded communal bonds: to a sig­ nificant degree, fathers lost grip over their sons, husbands over wives, and chiefs over commoners. Social institutions loosened and began to break down. Second, Cape rule led to a rebellion, or more popularly-speaking, the Gun War. In the main it seemed that the Basotho questioned the entire constitutional arrangement between their Territory and the Cape of Good Hope Colony. The question of whether Lesotho was a crown colony or a protectorate was brought to the surface. The Imperial Government, following consultations with chiefs, resumed its rule through the South African High Commission; but that war also unleashed the heretofore masked factionalism within the chieftaincy. In 1903 a colonial institution called the 'Basutoland National Council' was established. From the point of view of the Imperial Government and the colonial administration, the National Council was established initially to take the place of the Basotho pitso. It was hoped that it would facilitate the formulation of policy pertaining to the internal affairs of the Territory: to effect a two-way communi­ cation between the colonial staff and the people and generally to provide a forum where the Resident Commissioner and the Morena e Moholo and his chiefs could exchange views and share the responsi­ bility for decision-making. Although initially there was no stated aim to use the National Council as a prototype of a Legislative Council, its conduct betrayed that aim. By the early 1920s, at least, the South African High Commission had begun to concede, however cautiously, that it saw the Council as a midwife of new ideas and a school for preparing the Basotho for self-government along parlia­ mentary lines. Generally speaking, the colonial administration failed to attain the major professed objectives regarding the functions of the National Council, which never took the place of the pitso, as envisaged. The one major characteristic of a pitso, namely, the chieftaincy's responsiveness and accountability to the commoners, was virtually non-existent in the National Council. Chiefs attended the National Council mainly to further their own interests and to pander to the interests of the colonial administration. The interests of the nation at large concerned them mostly when there was a crisis, and where, therefore, the position of the chieftaincy was under threat. As the National Council began, at its First Session in 1903, to draft or re-state customary law, and periodically thereafter to amend xii Preface it and to add to it, its constitutional status became anomalous. There was no doubt in the minds of the members of the Council that in drafting, amending and adding to those 'Laws' they were legislating; while the colonial administration was split in its opinion: a Resident Commissioner and a Legal Adviser saying in one instance that the Council had merely declared customary law, another Resident Com­ missioner and another Legal Adviser saying at another instance that it had merely legislated 'informally'.