This report represents the findings and recommendations of the Senate Petitions Committee based on its investigations which were prompted by a Petition submitted on 17 January 2014 by the Youth Leagues Forum of Lesotho (hereinafter referred to as Youth Forum or Y.L.F.L) on the” CONCERNS WITH FURTHER LESOTHO HIGHLANDS WATER PROJECT (LHWP) DEVELOPMENTS”.

The Youth Forum is an organization which brings together multiple Youth Leagues of different political parties in Lesotho albeit not completely all-pervasive. It is registered as YLFL with registration No. 2017/124.

In a nutshell, it’s mandated to drive the agenda of economic development and youth empowerment in Lesotho. The objectives of the organization include inter alia; defense and sustenance of the sovereignty of The Kingdom of Lesotho.

Post the submission of the Petition of the 17^th January 2014 the Youth Forum was afforded audience by The then Minister of Energy, Meteorology and Water Affairs (MEMWA) and his officials and according to the findings of the Committee, some issues were addressed and that resulted in production and submission of a later and amended Petition which was submitted on the 19^th October 2018; which is the subject-matter of this report inclusive of the committee’s investigation, deliberations and recommendations. It should be noted that the petition has been re-summited to the Senate as governments changed and the Ministry become two Ministries and this was done in accordance to Standing order (SO) 103(1).

The Petitions Committee of the Senate has made an endeavor to be true to its mandate.

2. Formation of the Petition Committee

2.1 Powers of the committee

“The Petitions Committee shall, in accordance with the Standing Orders No. (89);

Consider petition referred to it by either the Senate or the President, and obtain inputs or evidence thereon.
Exercise an oversight function over the executive authority and any organ of state through the receipt and consideration of petitions, including the implementation of legislation and thereby maintain their accountability to Parliament;
Perform other functions, tasks and duties as may resolved by the Senate.

2.2 functions of the committee

The petitions Committee may –

Call for papers, hear oral evidence, which may, by resolution of the committee, be recorded and transcribed;
Consult and liaise with Government ministries and departments;
Ensure the attendance of any person at a meeting of the committee in terms of the Parliamentary Powers and Privileges Act Of 1994; and

Upon conclusion of business laid down for their consideration, the Petitions Committee must adopt a report and make recommendations to the Senate which shall then take final decisions”.

3. Composition of committee membership

Hon. T.K.T Matela– Chairperson
Hon. S.B Seeiso- Member
Hon. M. Maama – Member
Hon. M.T. Makhaola- Member
Hon. M.S. Moholobela- Member
Hon. S.M.G Masupha- Member
Hon. A.N. Bereng – Member
Hon. S.S. Nkuebe- Member
Hon. M.L.Q Majara- Member
Hon. J.A. Mots’oene- Member
Hon. N.L Bereng- Member
Hon. M. Lebesa- Member
Hon. L.M. Seeiso – Member

Committee secretariat:

1) Mantsoaki Moorosi (Committee Clerk)

4. Operations of the Committee

Subsequent to the submission of the petition by the Youth Leagues Forum of Lesotho as mentioned in the introductory note, the Ministry of Energy including LHDA officials were invited to appear before the Petitions Committee apropos to the petition and duly obliged they appeared on the 10^th March 2014 and in the subsequent meetings. Furthermore, stake holders such as experts in LHWP and its operations were called to provide technical knowhow of the project. The agenda that was derived from the petition has been attached as Annexure B. The investigation sought to:

Ascertain the veracity of the correspondence and to engage with the appellants.
Ascertain the soundness of the arguments therein advanced by the appellants and
To recommend a way forward in a concerted effort.

5. Presentation of the findings

5.1 The rationale to the construction of Polihali dam

The concern that, the choice of Polihali as the second phase of The Lesotho Highlands water project which is provided for in the agreement, AGREEMENT ON PHASE II OF THE LESOTHO HIGHLANDS WATER PROJECT BETWEEN THE GOVERNMENT OF THE KINGDOM OF LESOTHO AND THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA of 2011(herein after referred to as the AGREEMENT) is a direct contravention of the provisions of the TREATY ON THE LESOTHO HIGHLANDS WATER PROJECT BETWEEN THE GOVERNMENT OF THE KINGDOM OF LESOTHO AND THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA (herein after referred to as the Treaty) and obligations under International Conventions, and as a result that has affected the configuration of the tunnel and poses safety and security risks in that, the tunnel system of Phase I was designed as a free flow tunnel with a maximum flow capacity of 25 m3/sec and contrary to the initial arrangement to have a Parallel Transfer Tunnel from Katse to ‘Muela (which was originally designed to accommodate Phase II flows) additional 18 m3/sec flow would add undue pressure to the transfer tunnel which was not designed for the cummulative flow of Phase I and Phase II.

However, the response by the Ministry was that there is no such risk because;

Water transfer from Katse Reservoir is regulated by the mechanisms at Mphorosane Intake Tower such that there cannot be uncontrolled flow from Katse to ‘Muela.
Even if for any other reason either climatic or technical, Katse dam is inundated, it has a spill way to provide for overflow.

5.2 The royalty formula and assumptions

It is acknowledged that the new configuration is going to affect the formula since the water volumes will no longer be equal to what Mashai Dam was going to deliver. According to the investigations of the committee, this matter has been brought to the attention of LHDA, and will be dealt with.

Articles 12(2), 12(6), 12(8) and 12(9) of the Treaty foresaw such situations and require that the Royalties should be re-visited.

5.3 Delays by the Republic of South Africa to initiate Phase II studies

The committee found out that contrary to the Feasibility study for Phase I which was a concerted effort by Lesotho and RSA consortiums, the feasibility study for Phase II was done almost separately and independently of each other by Consult Consortium for RSA and Seed Consult for Lesotho. The result is that, the level of expertise at Phase I is different and for all intends and purposes superior to that one of Phase II. The Committee found out that on the 22^nd September 2005 agreement was reached about feasibility studies. According to the agreement each party has responsibility to conduct and finance its own feasibility study at a rate of 50/50.

5.4 Training of local engineers and technicians in dam and tunnel engineering disciplines

On this issue, the response by the ministry was that such training was provided over a period not less than a year depending on different technical fields, and the result was that 160 Lesotho Nationals benefited and qualified as Engineers. Of that 160, 19 of them are registered Engineers. It would seem the real issue here is one of retention and not training. No Policy seems to have been made about how and under what circumstances the LHDA – trained engineers should be retained. Every one was left to fend for himself.

5.5 Lesotho’s national power supply and security continues to be frustrated by Phase II Polihali dam construction

Article 8 of the 2011 agreement says “the implementation of the Kobong pump storage scheme is subject to agreement on the outcome of joint feasibility study”. The site visit by the Committee which was conducted from the air (by Military Helicopter) had no evidence to the effect that Polihali and Kobong are connected in any way. This in contrary to what the 2011 Agreement alluded. According to YLFL Kobong Pump storage would produce 1000mw to 1200mw and Lesotho needs only 200mw to satisfy industrial and domestic needs. Meaning the rest of the power or part thereof would have to be sold to RSA, but for that to happen there has to be a Power Purchase Agreement (PPA) between Lesotho and RSA or their agents. Before there is any PPA between the two parties there has to be;

Study about transmission lines;
Geo-technical investigation; and
Environmental impact assessment.

Surprisingly, none of the above has been done and so it becomes just a fallacy to even talk about Kobong Pump Storage. Moreover;

Feasibility study about Kobong have not been complete yet the Polihali construction has begun;
The projected costs are far too heavy a burden for Lesotho to shoulder. This was verified by the Committee during the site visits at Muella.

It follows that;

In the absence of a complete feasibility study, and;
and in the absence of the three points in reference to PPA ;
and in the absence of the requisite finances;

The prospects for construction of Kobong Pump Storage are non-existent. However, in their presentation LHWP representative proposed two possible solutions. There are two potential areas that have been looked into for electricity production one at Oxbow and the other at Senqu river. Secondly, prospects to develop mini-hydropower plants in existing dams.

5.6The power security of the kingdom of Lesotho

The concern in a nutshell is about the Power Security. It is agued that it would have been in the best interest of Lesotho for the Government to have considered the primary option of hydropower base-load generation which would have long-term sustainable economic benefits and not the Kobong Pumped Storage Scheme which will only produce Peak Power.

The Ministry pointed out that for self sufficiency in electricity generation in the long term there are optional projects already in the pipeline which include;

harnessing wind roses,
Exploiting solar energy,
Smaller hydro-power stations like those on Khubeli, Mants’onyane, Semonkong etc.

6. Recommendations

The Committee recommends that the government to revisit article 5 of the treaty which suggests that the two countries may discuss the conditions of the treaty from time to time to ease the running of the project.
Government of Lesotho should review Phase II agreement to include clauses that domesticate some services providers.
Post the side visit at Polihali the committee resolves it would be costly for Lesotho to discontinue the construction; rather alternative site for electricity production must be designated with immediate effect.
Ministry of Water to develop a retainer policy for engineers and other disciplines involved in the project.
A protocol to 2011 agreement to be added by the two countries to allow Lesotho to sell to other countries and use surplus water from Polihali for domestic purposes.
Phase II agreement to be reviewed to rectify loop-holes if any that may prompt for possible discontinuity of Phase III, IV and V which will inturn cut revenue for Lesotho.
The treaty should be reviewed to mandate certain positions/ contracts for Basotho only.

7. Conclusion

The investigations and engagements were conducted on the basis of past interactions between the two countries, authoritative norms of law of international transactions (especially Law or Treaties) and domestic law. Reference to past interactions became necessary in order to ascertain the intention of both parties at the early stage of the project. Therefore, the 1986 Treaty, the 2011 Phase II Agreement and the domestic legislation governing tax and tax administration were guiding principles.

In addition, when everyone thought youth had a future so bleak that it is as good as lost; our spirits have been revived. They represent an ideal where people are able to transcend petty partisan politics and personal whims to give due diligence to national issues and for that the Committee wish to pass gratitude to YLFL. They are a group of learned fellows who deserve a compliment. It can only be hoped that the torch will shine on into the future.

After a site visit, meticulous deliberation on the subject matter and the finding thereof, the committee conclude that Phase II Agreement and Polihali dam has little benefit for Basotho. Moreover, the construction of Polihali is costly for Lesotho and it has failed to abide with the protocols of the treaty. Senate as the upper house of the Parliament viewpoint resurrects the treaty and its protocols for the benefit of Basotho while it edges prompt action to be taken by the two governments to review Phase II. Finally, Lesotho as the custodian of the project should have a bigger share in relation to division of personal and contractors during the infrastructural development.

On that note the committee wishes to submit to the House for adoption of this report.

Annexure

LHDA REPORT BY PETITIONS COMMITTEE

Abbreviations

Phase II- 2011 Agreement

1. Introduction