We are aware that in recent days discussions among social partners on the labour law reforms through broad amendment of the Labour Code Order 1992 were resuscitated. As we know the discussions are conducted within the National Advisory Committee on Labour (NACOLA). This is a national tripartite structure charged with the statutory responsibility:
“(b) to consider and advise upon any proposed legislation affecting labour, employment, industrial relations or working conditions;
(c) on its own initiative, to discuss any matter connected with labour, employment, industrial relations, working conditions or labour legislation as it sees fit, and to report to the Minister in writing upon such discussion;”
We welcome the resuscitations of the discussions and hope that this time the process of reforming the law and the entire labour administration will bear good fruit. We are however concerned that there are still fundamental issues that may take a long time to settle or reach consensus, leading to protracted discussions that may end up in further stalemate. We should recall that the country is undergoing Constitutional reforms. This process seems to be stalling and may affect all other legislative reforms that are occurring around it, which include the Labour Code amendment.
Lesotho has in the past undergone some form of reforms in labour administration and law in general. The reforms did not occur overnight. Extensive social partners’ engagement were done. Administrative reforms were at least realised and in some instances amendment of the law was realised.
From around 1998 to 2001 Lesotho established a project on promotion of regional conflict management. Other countries in the region benefited from this project as well. This was known at the ILO Swiss Project. It was institutionalized and run by the Chief Technical Advisor whose offices were set up in South Africa. This project made significant achievements which saw legislative reforms under the Labour Code Amendment Act 2000 and establishment of the Directorate of Dispute Prevention and Resolution, revamped Labour Court, the Labour Appeal Court and the Industrial Relations Council. This process took about 3 years to complete. The report released by the Project in 2003 was that the objectives of the project were achieved and the dispute resolution system established under it was working well and sustainable.
From about 2001 to 2004 the USDOL funded a project in Lesotho on Strengthening Labour Administration in Southern Africa (SLASA). The aim of the project was among other things to assist the Lesotho Department of Labour to strengthen and professionalise its inspectorate. This was through improved reporting systems under reorganized structures; regular, systematic and planned inspections through workplace visits; education on labour laws and obligations of workers and employers; inspection monitoring and enforcement success; data collection and analysis on labour and employment issues for statistical and research functions; and increased enforcement through application of appropriate sanctions. Again the project was highly successful as it was institutionalised and run by a Project Coordinator based in Maseru. The labour inspectorate has from then been far better in terms of organisation and performance than what was seen before.
From 2004 – 2007, another project was established called Improving Labour Systems in Southern Africa (ILSSA). The project was an ILO initiative aimed at improving labour administration in Southern Africa, and Lesotho was one of the beneficiaries. The Project was also aimed at ensuring compliance with national labour laws. The project was also institutionalized as it was run by a Project Manager based in Maseru. It made positive contributions to the management and administration of the Ministry of Labour in Lesotho.
We implore the authorities to take lessons from the institutionalization mechanisms made in establishing labour administration and labour law reform processes. Unless similar project institutions are established in Lesotho to drive through the current Labour Code reform we would still face challenges of unsuccessful reforms process. Drawing lessons from the Constitutional reforms, the National Reforms Authority (NRA) was established as an institutional body, driving day to day activities leading to legislative enactments, to be precise. The functions of the NRA were among others the following:
- Promotion of stakeholder consensus on the reforms;
- Reform and creation of an effective, efficient, professional and results-oriented civil service for enhanced service delivery and development;
- Review and reform of the justice sector to ensure greater justice, rule of law and protection of human rights;
- Review and reform of critical institutions, relevant legislation to ensure enhanced institutional independence and stability;
- Generate consensus on an inclusive mechanism to undertake a review of the law to ensure its alignment to the needs of present-day Lesotho.
The benefits of institutionalisation are obvious from this example. As a way of emphasis if NACOLA can establish a labour law reforms unit within it or separately where we will see significant progress in the current initiatives. The terms of reference of the Unit may be tapped from the NRA model. Its funding would not be a problem as a number of development partners are willing to assist such as the ILO, the Millennium Challenge Cooperation, USDOL etc. Government of Lesotho would also come in as it has interest to see the Labour Code successfully overhauled.
Coming to the draft Labour Code itself, we recall very well that initial versions were drawn as far back as 2006. There is a version which was subject of debate last week. We have been calling for improvement in some of the legal provisions in our previous publications such as misconduct considerations, hours of work, overtime, maternity protection, collective bargaining effectiveness and gender aspects of labour, to name a few. We understand that in recent discussions there were issues specifically on the formulation of provisions relating to hours of work and issues of maternity leave or payment thereof. A host of others are still not settled to be included in the legislation. The most critical is to establishing an all – encompassing labour administration system that combines private labour law and public service labour law systems. This is in line with the setup as established by government where the Ministries and Labour and Public Service are jointly managed. The law should respond to this development to properly administer the new combined labour system in Lesotho.
The benefits of institutionalisation of programmes are widely recognised by scholars and project management practitioners. The most significant benefit is on establishment of monitoring and evaluation processes where deliverables are identified, tracked and sufficiently confirmed to ensure successes of the project. It ensures accountability of the programme, effectiveness, efficiency and evidence-based practices. In addition, it holds accountable those responsible for policy, project and programme implementation.
We accordingly call on the social partners to take measures to complete the labour law reforms process through establishment of institutional mechanisms. Consultants can be brought in by the reforms institution to provide professional guidance and resource to drive the reforms. This will enable working on the reforms on day to day basis, efficiently to realise results in a very short time. Already the government of Lesotho is faced with a condition precedence to complete labour law reforms before the entry into force of the MCC Compact II scheduled for March 2024. With this slow pace of progress it would be impossible to achieve that milestone.
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