2010 Investment Climate Statement
Bureau of Economic, Energy and Business Affairs
March 2010
Report

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Openness to Foreign Investment
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Lesotho is largely open to FDI and views FDI as a means to drive growth, improve international competitiveness, and obtain access to foreign markets. Virtually all business sectors are open to foreign investors. No government approval is required, and there are almost no restrictions on the form or extent of foreign investment. However, the country's FDI policy and legal framework are not well developed enough to enhance transparency and consistency. Lesotho has been more successful than most other least-developed countries in attracting FDI - predominantly export-oriented investment. Foreign investors in the apparel industry have created new jobs, particularly for females, and contributed to poverty reduction. Current business taxation regulations only partially address investor needs because they predominantly favor investment in manufacturing. The Government of Lesotho (GOL) is under pressure to revise relevant laws affecting investors in various sectors.

The Lesotho National Development Corporation (LNDC), the main parastatal of the Government of Lesotho, which falls under the Ministry of Trade and Industry, Cooperatives and Marketing, is charged with implementation of the country’s industrial development policies. LNDC provides assistance to foreign investors; publishes information on investment opportunities and services it offers to foreign investors. It also offers incentives, assistance with work permits, and logistical support for relocation. These can be viewed on its website: http://www.lndc.org.ls.

Ninety percent of FDI flows into export-oriented manufacturing. FDI in manufacturing alone created 45,000 jobs in 2008; however, employment in the sector has declined to 36,000 jobs in 2009 due to the global economic meltdown. The single largest investment is believed to be around $90 million in capital infrastructure by the Taiwanese Nien Hsing Group. Lesotho's export-oriented FDI gives it an advantage that needs to be built on. Foreign firms in Lesotho are highly concentrated in a very narrow range of products such as knit apparel and jeans. Foreign affiliates have also invested small amounts in footwear, electrical products, electronics, television assembly, food processing, and other manufacturing products such as plastics and umbrellas.

The telecommunications sector in Lesotho has also attracted FDI. The consortium of ESKOM Zimbabwe's Econet Wireless International and Mauritius Telecom has a 70% share of Lesotho Telecom. Lesotho has a high penetration of telephony relative to per capita income. Such services have been extensively modernized and expanded in recent years.

FDI in air transportation has not been successful. Lesotho Airways is now managed and handled by South African Airways for flights from Maseru to Johannesburg, and tourism has not been exploited, especially in activities aimed at protecting the natural environment and ecological attractions.

FDI in diamond mining has been revived by the reopening of three commercial diamond mines, namely Lets’eng Diamonds, Liqhobong, and Kao diamond mines. Lets'eng Diamonds is a partnership between a South African-owned company and GOL. The mine employs about 70 people, 90% of whom are Lesotho nationals. Liqhobong and Kao diamond mines are partnerships between GOL and a European and Gibraltan mining company respectively. Operations at these mines were suspended at the end of 2008 due to falling rough diamond prices. Four other mines, namely Mothae, Motse-Tsoeu, Lemphane and Kolo, are being prospected at different parts of the country. In its attempt to attract FDI to the mining industry, the GOL has offered a number of concessions, including VAT exemptions on inputs used during construction, and exemptions from withholding taxes on dividends and interest payments. In return, GOL is granted 8% of gross sales royalties and a share of dividends due to its equity shareholding in the three mines. GOL has 30% equity shareholding in Lets’eng Diamonds, 25% in the Liqhobong diamond mine and 7% in the Kao Diamond Mine with provision for this to increase by 13% to 20% if GOL decides to have a larger stake in the company. Three laws: the Mines and Minerals Act (2005); the Precious Stones Order (1970); and the Mine Safety Act (1981), provide a regulatory framework for the mining industry.

Generally, the GOL continues to recognize the need for the Kingdom to be competitive in regional and international markets. To achieve this goal, the government has embarked on structural reforms that aim at improving the investment climate. Initiatives include private sector competitiveness programs under the Millennium Challenge Corporation and the World Bank, as well as modernizing customs processes through technical assistance from the USAID Southern Africa Global Competitiveness Hub. Specific activities include modernizing bank payment systems; introducing national ID's; creating credit facility for manufacturers; and modernizing land tenure systems. Customs processes will include minimizing the number of procedures required to clear consignments, both for export and import clearance purposes.

The Ministry of Trade and Industry also introduced a "One Stop Shop" where all services required for the issuance of licenses, permits, imports, and exports clearances are housed under one roof. This has reduced the number of days to start a business from 92 days to 30 days. The Ministry is committed to developing this facility further to increase efficiency and expedite the procedures and processes needed to compete in the exporting business. Developments will extend to simplifying and expediting the issuance of work and residence permits to reduce the turnaround time.


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Measure
Year

Index/Ranking

TI Corruption Index

2009

89 (out of 180)
Heritage Economic Freedom
2009
49.7 or (151 out of 179)
World Bank Doing Business
2010
130 (out of 183)
MCC Govnt Effectiveness
2009
81%
MCC Rule of Law
2009
90%
MCC Control of Corruption
2009
92%
MCC Fiscal Policy
2009
88%
MCC Trade Policy
2009
20%
MCC Regulatory Quality
2009
52%
MCC Business Start Up
2009
67%
MCC Land Rights Access
2009
55%
MCC Natural Resource Mgmt
2009
11%


Lesotho's apparel sector is entirely East Asian and South African-owned and currently employs about 36,000 people. Two factories are under Taiwanese ownership, two are owned by Hong Kong, one is Singapore-owned, and eight are owned by South African firms. South African FDI is present in footwear factories, four electronic firms, Sun Hotels, air travel, insurance and telecommunications, financial services, and mining.

Lesotho's performance in attracting FDI has been creditable by regional standards. It is commendable that the bulk of FDI is channeled into the manufacturing sector and most of that investment goes into export activity. FDI entry in business and consumer services is now restricted in the case of small scale retail and personal services businesses. No foreign ownership or even board directorship by a non citizen is permitted at any level in these restricted businesses. However, there are foreign-owned small retail businesses which were established before the present restrictions. These restrictions on small-scale services and manufacturing businesses are instruments of immigration control. Lesotho is sensitive to the entry of small business owner-operators from abroad, especially from China and West Africa. If such businesses were established, this would officially be perceived as an unwelcome level of economic migration.

Many trading businesses and all substantial manufacturing businesses are open to FDI. Nevertheless the relevant trading or industry license is required and must be renewed annually.

In most aspects of "normal business," foreign investors are on an equal footing with Basotho investors. An exception is the prohibition on ownership of land lease titles by foreign investors. Lesotho has no legal provisions that discriminate among home countries. It is a member of SADC, but this does not lead to preferential treatment for investors from these countries.

Lesotho's standards of treatment and protection of specific interest to foreign investors are good in practice, but the legal framework guaranteeing these norms is weakly developed. There is no foreign investment law. Bilateral Investment Treaties (BITs) have been concluded with only two countries, the United Kingdom in 1981, and Germany in 1985.

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Conversion and Transfer Policies
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Lesotho has traditional foreign exchange controls but is also controlled by its membership in the Southern Africa Common Monetary Area (CMA). The CMA is comprised of Lesotho, Namibia, South Africa and Swaziland. Under the CMA the South African rand is legal tender in Lesotho. Under CMA rules the loti should be exchanged at par with the rand and the rand/loti peg must be maintained. Lesotho must hold reserves in rand and other foreign currencies. There are no exchange controls between Lesotho and South Africa but CMA members agree to have exchange controls with third parties.

Lesotho has partly liberalized the capital account. Controls on the current account were abolished in 1998 while limited controls on the capital account were adopted in 1993.

Commercial banks have been delegated authority to undertake current account transactions and Lesotho acceded to Article VIII of the International Monetary Fund. However dividends payments still require Central Bank approval. The Central Bank maintains direct power of approval over foreign exchange requirements for all capital account transactions including FDI, capital disinvestment, and contracting and servicing offshore debt. There has never been a case of blockage of such transfers, and shortages of foreign exchange that could lead to blockage are highly unlikely given net international reserves of $1 billion in 2008, which is equivalent to eight months of import cover. Lesotho is a member of the Southern African Common Policy on approval of foreign loans. However policies on foreign borrowing are not strongly developed on the grounds that there is little foreign borrowing by resident businesses. The Central Bank and the Lesotho National Development Corporation (LNDC) monitor international capital inflows.

There are no restrictions on converting or transferring funds associated with an investment into a freely usable currency and at a legal market clearing rate. However, for loan repayments an investor needs to notify the bank at the beginning of an investment that the capital for that investment is a loan, they also need to disclose the terms of the loan. The current average delay period for remitting investment returns such as dividends, return of capital, interest and principal on private foreign debt, lease payments, royalties and management fees through normal, legal channels is two days, provided the investor has submitted all the necessary documentation related to the remittance.

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Expropriation and Compensation
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The constitution provides that the acquisition of private property by the state can only occur for specified public purposes. Further, the law provides for full and prompt compensation. Affected persons may appeal to the High Court as to whether the action is legal and compensation is adequate. The constitution is silent as to whether compensation may be paid abroad in the case of a non-resident.

In one incident, mining companies filed a case against the Lesotho Water Highlands Project, alleging that the plaintiff companies hold mineral lease rights located within the geographic area of land that was inundated as a result of the construction of Katse Dam. The companies claimed that the said rights have been unlawfully expropriated by the GOL without any compensation.

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Dispute Settlement
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Foreign investors have full and equal recourse to the Lesotho courts for commercial and labor disputes. Courts are regarded as fair and impartial in cases involving foreign investors. Complex commercial cases may be heard by foreign judges. Privatization has introduced a number of investment agreements and these provide for international arbitration to settle disputes. Under the BIT with United Kingdom, an investor may take a dispute with the Government to international arbitration. The Germany BIT is silent on this issue.

Lesotho is a member of the Multilateral Investment Guarantee Agency and has acceded to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States.

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Performance Requirements and Incentives
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There are no incentives for and no performance requirements imposed specifically on foreign investors as a condition of investment. However, there are a number of financial incentives available to manufacturing companies establishing themselves in Lesotho, such as unimpeded access to foreign exchange, export finance facility, and long-term loans.

The Lesotho tax system also heavily favors investment in manufacturing. Corporate income generated from exporting manufactured goods outside the Southern African Customs Union (SACU) is taxed at 0%. There is a permanent maximum manufacturing tax rate of 10% on profits and there is no withholding tax on dividends paid to non-residents from manufacturing profits. There is also free repatriation of profits derived from manufacturing companies. Corporate income in all other sectors is taxed at 29% and there is a further 25% withholding tax on non-resident dividends. There is a credit facility for value added tax (VAT) on imports, which provides input tax credit upon importation and local purchasing of raw materials and capital goods for manufactures. Moreover, only industrial buildings and mining qualify for depreciation allowances for taxation. Buildings for services, tourism, farming, etc., are not depreciable. Infrastructure such as land improvements and site services also do not qualify.

Lesotho has double taxation agreements with the Federal Republic of Germany, the Republic of South Africa, Mauritius and the United Kingdom.

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Right to Private Ownership and Establishment
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Lesotho has no competition law or overall competition regulator. Instead, under the industrial and trading licenses system a business can apply for protection from competition for up to 10 years.

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Protection of Property Rights
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Lesotho respects international intellectual property laws and is a member of the World Intellectual Property Organization and the African Intellectual Property Organization. Patents are rarely issued in Lesotho but trademark protection is often sought and granted. Intellectual property protection is regulated by the Industrial Property Order and the Copyright Act of 1989. The law protects patents, industrial designs, trademarks, and grant of copyright. The Law Office is responsible for enforcement of copyrights.

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Transparency of the Regulatory System
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The judicial system is fair and competent in commercial matters and the government is willing to supplement the bench with foreign judges in specialized cases.

Generally there is adequate regard in the courts for equal treatment of foreign investors who are in dispute with national parties or the government.

Company law is based on the Companies Act of 1967 which provides reasonable standards for most purposes but is believed to be incomplete and complex. Technical improvements were incorporated in a 1998 draft of a new company law and were circulated to stakeholders but a new law has not been introduced.

The regulatory framework for utilities is modern, but it is outdated for mining. Lesotho mining legislation gives authority to grant titles to the King and Principle Chiefs upon the recommendation of a Mining Board. Financial services regulation is also up to date but the industrial and trading license system is archaic. Industrial licensing long ago lost its original purpose of protecting start-up firms from competition. Trading licenses are required for 44 types of business. Some enterprises can require up to four licenses for one location.

Telecommunication: Lesotho's Telecommunications Authority is the sector's independent regulator. The authority sets conditions for entry of new competitive operators. Currently it allows Lesotho Telecom to maintain a monopoly for fixed-line and international services.

Banking and other financial services: Banking regulations do not give power to the Central Bank to give directions as to interest rates, exchange rates, margins, or the spread of services offered. This is because of the currency peg with South Africa and hence Lesotho has lost its leverage on monetary policy. This creates a low political risk environment for banking investment.

The Ministry of Trade and Industry also introduced a "One Stop Shop" where all services required for the issuance of licenses, permits and imports and exports clearances are housed under one roof. This has reduced the number of days to start a business from 92 days to 30 days. The Ministry is committed to developing this facility further to increase efficiency and expedite the procedures and processes needed to compete in the exporting business. Developments will extend to simplifying and expediting the issuance of work and residence permits to reduce the turnaround time.

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Efficient Capital Markets and Portfolio Investment
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Lesotho has a small financial system that is closely tied to South Africa through the Common Monetary Area. There are three foreign-owned banks: First National Bank, Ned Bank and Standard Lesotho Bank, which bought a 70% share in state-owned Lesotho Bank. According to a recent IMF report, the banks in Lesotho are well capitalized and very liquid. However, credit provision is very low and this is going to be addressed through structural reforms under the private sector development component of the Millennium Challenge Corporation Compact which includes the establishment of a credit bureau. Industrial and commercial credit is provided by the Lesotho National Development Corporation (LNDC) and foreign investors are able to get credit on the local market. LNDC's mandate is to promote and facilitate foreign investment.

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Competition from State Owned Enterprises
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Lesotho privatized all state owned enterprises (SOEs) including telecommunications, banks, utilities, government transportation, and the radio airways following the adoption of the privatization Act of 1995. However, in 2004 the government established a government-owned bank which is mandated to access financial services to Basotho living in urban and rural areas of the country who do not have bank accounts. In 2008, the government also introduced state-owned buses in the public transportation sector. The SOEs senior management reports to an independent board of directors. They are required by law to publish an annual report and to submit their books to independent audit.

Private enterprises are allowed to compete with public enterprises under the same terms and conditions with respect to access to markets, credit, and other business operations, such as licenses and supplies.

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Corporate Social Responsibility
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There is a general awareness of corporate social responsibility among both producers and consumers. Investors mostly give back to the society during the winter season and during the “Festive Season” around Christmas. Foreign and local enterprises tend to follow generally accepted corporate social responsibility (CRS) principles such as the OECD Guidelines for Multinational Enterprises. Firms who pursue CSR are viewed favorably by society.

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Political Violence
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Following the February 2007 general elections there were civil disturbances that led to a few stay-aways and protest rallies by opposition parties in 2008 and 2009, but there has not been politically-motivated damage to projects. Political tensions between governing and opposition parties still exist but the national political atmosphere is generally calm.

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Corruption
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Investors reported that corruption is not a significant factor for foreign investors. Anti-corruption legislation was passed in 1999 and is being effectively implemented through an autonomous anti-corruption unit called the Directorate on Corruption and Economic Offences (DCEO). Lesotho signed and ratified the UN Anticorruption Convention in 2005, but it is not yet a signatory of the OECD Convention on Combating Bribery.

A case from the early 1990s involving corrupt government officials and bribe-paying by foreign corporations engaged in constructing the multimillion-dollar, World Bank-funded Lesotho Highlands Water Project (LHWP) was concluded recently. The former top Lesotho diplomat assigned to the multibillion LHWP and his deputy have been sentenced to ten (with five years suspended for three years) and six years (with eighteen months suspended for three years) imprisonment respectively after they were found guilty of accepting bribes from an international construction company.

International nongovernmental "watchdog" organizations operate in the country. Lesotho ranks 89 out of 180 countries in Transparency International's Corruption Perceptions Index for 2009.

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Bilateral Investment Agreements
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Lesotho has bilateral investment protection agreements or treaties with the United Kingdom and Germany which entered into force in 1981 and 1985 respectively. In 2004, Lesotho also signed a bilateral investment agreement with Switzerland, for the promotion and protection of investment. This agreement has not entered into force yet. The three agreements have already been posted in full on the UNCTAD website.

Lesotho does not have a bilateral investment treaty or a bilateral taxation treaty with the U.S. and there are no taxation issues of concern to U.S. Investors.

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OPIC and Other Investment Insurance Programs
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OPIC insured one American-owned company: Seaboard Corporation's joint venture with Lesotho Flour Mills. Seaboard started operations in 1998 and currently employs about 300 people. OPIC can encourage United States investors to consider exploring new investment opportunities in other sectors. The Mission does not have a bilateral agreement providing for OPIC program and does not budget for OPIC claims in its official budget.

Lesotho is a member of the Multilateral Investment Guarantee Agency (MIGA). In 2000, MIGA issued guarantees to Imperial Group (Proprietary) Limited of South Africa for its investment in the partial privatization (60 %) of the government's Plant and Vehicle Pool Service Unit.

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Labor
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Lesotho's Labor Code Order of 1992 regulates terms of employment and conditions and for worker health, safety, and welfare. It was amended in 2004 to include HIV/AIDS policies in the workplace. Union organization is permitted. There is a full-time and independent Directorate of Industrial Dispute Prevention and Resolution. Statutory minimum wages are fixed annually by the Ministry of Labor and Employment with recommendations from a tripartite Wages Advisory Board. Minimum wage setting is sensitive to the textile and garment industry's need to maintain competitiveness.

In 2001, Lesotho ratified both the ILO Convention 182 on the Prohibition and Elimination of the Worst Forms of Child Labor and Convention 138 on the Minimum Age of Employment. The Labor Code Order of 1992 and its subsequent amendments are the principal laws governing terms and conditions of employment in Lesotho.

The Labor Code Order of 1992 requires every non-citizen employee or self-employed person to have a work permit. A work permit is issued by the Labor Commissioner, who must be satisfied that no qualified Lesotho citizen is available for the position. The statutory maximum duration of a work permit is two years.

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Foreign Trade Zones/ Free Trade Zones
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There are no free trade zones in Lesotho.

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Foreign Direct Investment Statistics
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Lesotho's FDI statistics for 2007 are estimated as follows:

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FDI Stock (in Million Maloti)700.50
(in Million USD)94.66
Stock as % of GDP6.02
GDP in Million USD1,571.72 (2007 GDP at current prices)

Comment: The latest Private Capital Flows (PCF) Survey report is for 2007. The 2008 PCF report is still being finalized and the Central Bank would not release the data to the post because it is not considered official until the Minister of Finance and Development Planning approves it. The 2009 survey is still ongoing. The compilation of PCF data currently has a one year lag.


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2007 Direct Investment Capital Flows by Industry Sector
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In millions of USD % of GDP
Mining and Quarrying24.941.59
Manufacturing34.782.21
Building and Construction0.320.02
Wholesale and Retail Trade4.930.31
Transport and Communications26.381.68
Finance and Insurance2.690.17
Real Estate and Business0.620.04
Total Capital Flows94.666.02

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2007 Direct Investment Capital Flows by Country of Origin
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In millions of USD % of GDP
South Africa38.722.46
Taiwan7.060.45
Netherlands2.900.18
China0.640.04
United States15.320.97
Switzerland0.450.03
Belgium5.260.33
United Kingdom24.301.55
Total Capital Flows94.666.02

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2007 Direct Investment Abroad
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Stock in Million Maloti188.05
Stock in Million USD25.41
Percentage of GDP1.62

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2007 Direct Investment Abroad by Industry Sector
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Sector in M Maloti in M USD %GDP
Manufacturing166.9322.561.44
Wholesale & Retail0.370.050.00
Transport & Comm.2.570.350.02
Finance & Insurance0.880.120.01
Total Claims Abroad188.0525.411.62

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2007 Direct Investment Abroad by Country of Destination
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Country in M Maloti in M USD % GDP
South Africa47.436.410.41
Taiwan99.7113.470.86
Netherlands39.815.380.34
Switzerland1.090.150.01
Total Claims Abroad188.0525.411.62
Sources:

FDI: Central Bank of Lesotho; Report on Private Capital Flows Survey 2007

GDP: Bureau of Statistics; 1998-2008 National Accounts Publications

Exchange rate period; 2007 average 1USD = M 7.40

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