The Law and Legal Research in Lesotho

Itumeleng Shale is a senior lecturer and researcher at the National University of Lesotho. She holds an L.L.B. from the National University of Lesotho and an L.L.M. in Human Rights and Democratisation in Africa from the Centre for Human Rights University of Pretoria and a Ph.D. from the University of the Witwatersrand.

1. Introduction

The Kingdom of Lesotho is a landlocked country totally encircled within the Republic of South Africa in the southern part of Africa and is located at 29 30 S, 28 30 E. The country measures approximately 30 350 sq. km; 9 percent of which is suitable for crop farming while 91 percent comprises of mountain ranges and foothills suitable for livestock farming. According to the 2016 population Census, Lesotho has a population of approximately 2,oo7, 201 people; 48.9 percent of which are males and 51.1 percent females.[1] Lesotho is categorised as one of the Least Developed Countries. Since 2016, the unemployment rate in Lesotho remains high, between 24 and 28 percent.[2] It is coupled with high inequality and poverty. In 2019, unemployment rate is higher for females than males.[3] About 76 per cent of the people dwell in the rural areas. In terms of the United Nations Development Programme (UNDP) Human Development Report (2013), Lesotho ranks number 158 out of 187 states.[4]

Lesotho follows a Westminster type of governance. The country’s government is a constitutional monarchy with multiparty democracy. The King is the head of state while the prime minister is head of government and of a multi-party system. In terms of section 87 of the Constitution, the King appoints as the Prime Minister the member of the National Assembly who commands the support of a majority of the members of the National Assembly. The parliament of Lesotho is bicameral. That is, it is composed of two houses: Senate (Upper House) and National Assembly (Lower House). The Lower House has 120 members, 80 of whom are elected directly from constituencies while 40 are elected through proportional representation. The Upper House is made up of 33 Senators, 22 of whom are hereditary Principal Chiefs while 11 are Senators appointed by the King on the advice of the Prime Minister.

The country is divided into ten administrative districts each headed by a District Administrator. The districts are further divided into 80 constituencies which consist of 129 Community Councils.

2. Historical Overview

Lesotho was established by King Moshoeshoe I in the 1800s. This he did through unification of fragments of clans and displaced refugees that had come to him for protection against Shaka Zulu and the Boers who had invaded their homelands.[5] Currently the government perceives the inhabitants as ethnically and linguistically homogenous. However, Lesotho does have a level of heterogeneity in its population as there are minority groups such as the Xhosa and Baphuti in the Southern part of the country along the borders with South Africa.

Lesotho’s political history in the years leading up to independence is laced with nationalist calls for self-determination. The colonial masters, the British, initially toyed with the idea of Lesotho forming part of the 1910 Union of South Africa. The amount of pressure and resistance this generated, especially from the political elite ensured that this idea does not materialise. Elections were held in 1960 and the then Basutoland Congress Party (BCP) won 32 of the 40 seats, however, most of the appointed members voted for the Basutoland National Party (BNP), effectively giving the BNP majority.[6] Following the election, King Moshoeshoe II (then paramount chief) appointed a commission to draft a constitution that would usher in independence. The commission reported in 1963 and recommended a Westminster-style constitution with a two-chamber parliament. To the dismay of the King, his position was to be a mere figurehead under the independence constitution. The constitution also provided for a prime minister, who would be the leader of the majority party, and exercise executive power as the head of government.[7] The situation remains the same to date.

The next elections were held in 1965 on the basis of the first Constitution which was approved by the British Royal Degree in January 1965.[8] These elections were held in preparation for independence from Britain which took place on 4 October 1966. Parliament of Lesotho then passed an Independence Order of 1966 on the basis of which a new Constitution was adopted by Lesotho itself, now as an independent state. The 1966 Constitution was based on the British model although it had a Bill of Rights which was influenced by the United States of America’s constitutional practice. The 1965 elections were won by the BNP taking 31 seats to the BCP’s 25. Thus, BNP was the ruling party when the Kingdom gained its independence on 4 October 1966. In the 1970 elections, BNP lost to BCP for the first time. The BCP won 35 seats to the BNP’s 23 and the Marematlou Freedom Party’s (MFP) 1. The BNP did not accept defeat. As the results were being announced over the national radio station, the Prime Minister Leabua Jonathan declared a state of emergency and suspended the Constitution ‘pending the drafting of a new one.’ He justified this suspension in that the elections had been marred with acts of violence against the BNP supporters and therefore not fair. However, he did not mention that there were any flaws in the Constitution that warranted such a suspension nor precipitated the need for its re-drafting. Having declared a state of emergency BNP took over the government despite having lost the elections. It clung unto power until 1986 when it was eventually toppled by the army in a second coup of 1986 led by Major General Metsing Lekhanya. Major General Lekhanya was in turn displaced by his junior officers within the army in 1990.[9] The era of military dictatorship was characterised by a broad range of human rights violations, such as the banning of party political activities through Order No.4 of 1986, and the suspension of electoral politics.

On 28 June 1990, the National Constituent Assembly was established and tasked with drafting a new constitution. The Assembly resolved to use the 1966 Constitution as a framework for the new Constitution. On 16 March 1993, the Lesotho Constitution Commencement Order (Commencement Order) was published and the new Constitution came into force on 2 April 1993. The new Constitution did not make sweeping amendments to the existing governmental set up. It provided for the continuation in office of the person holding the office of King, as provided for under the Office of King Order of 1990. Several ‘undemocratic decrees that were passed by the self-imposed BNP government and the military regime were repealed in favour of laws that adhered to the Bill of Rights that was contained in the 1993 Constitution. In effect the 1993 Constitution is a replica of the 1966 Constitution. Several reasons for this cut and paste include an argument that in the first place there was nothing wrong with the 1966 Constitution that warranted its suspension and or the need for drafting of a new one.

In 1996, Queen Mamohato took over as Regent when the then King Moshoeshoe II died. She held on to power until the College of Chiefs appointed the current King (son to the late King Moshoeshoe II, and then Crown Prince Mohato Bereng Seeiso). He took the throne with a formal coronation on 31 October 1997 as King Letsie III. He remains the head of the Kingdom of Lesotho to date.

There has been a marked departure from authoritarian rule since 1993; however, the country has experienced serious post-election conflicts with 1998 standing out as one of the darkest years in the history of Lesotho. Today a constitutional monarch, Lesotho once endured 23 years of undemocratic government (including 7 years of military rule). It also survived three coups d’etat in 1970, 1986, 1994 and a 2014 attempted coup d’etat. From 2012 to date, Lesotho has had three coalition governments, with the first two being dissolved before completing the five year constitutional term. For the first time, following the 2012 elections, no political party attained a requisite majority to form government. Consequently, the three parties, All Basotho Convention (ABC), Lesotho Congress for Democracy (LCD) and BNP formed a coalition government; the first of its kind in the region. The coalition was however faced with several challenges. Consequently, some members of parliament tabled a motion of No Confidence in the Prime Minister, Thomas Thabane. Following this, the Prime Minister pursuant to section 83(4) of the 1993 Constitution advised the King to prorogue parliament. Prorogation of parliament led to political instability in Lesotho including an ‘attempted coup d’etat’ of the 30 August 2014. This instability led to an agreement between the political parties through facilitation of the SADC that parliament be dissolved in November 2014 and that early elections be called. At the time of its dissolution, Lesotho’s first coalition government made up of three political parties, had lasted for only half of its five year term. Snap elections were held on 28 February 2015. Similarly, no single political party won the 2015 elections and a second seven party coalition government led by the Democratic Congress (DC) was inaugurated on 17 March 2015.

During this period, Lesotho experienced another level of political and security crisis which led to arrest and torture of members of the Lesotho Defence Force (LDF), death of the LDF commander and exile of some members of the LDF, political leaders as well as the then Prime Minister. This called for yet another SADC intervention, which culminated into recommendations for investigation into the death of the LDF Commander, arrest and prosecution of those implicated in this and other deaths, as well as constitutional, security sector and public service reforms. Two years later, a vote of No Confidence in Prime Minister Pakalitha Mosisili was passed in the National Assembly and the King, acting in accordance with the Constitution, dissolved parliament and called for National Assembly Elections, which were held on 3 June 2017. The 2017 election results yielded the current four party coalition government. Immediately after the June 2017 elections, and on the basis of the SADC recommendations, all stakeholders in Lesotho signed a pledged to prioritise national reforms. Lesotho is currently undergoing a comprehensive national reform process under the theme “The Lesotho we want”. Following a number of consultations with all stakeholders, a consensus has been reached that the reform areas should be comprehensive and include constitutional, security sector, governance, the judiciary, media and economic sector in or order to address all factors that have contributed to Lesotho’s political instability, inequality and poverty.

Quite interestingly, despite the political instabilities that it has gone through, Lesotho is today one of the few countries in southern African that have subjected themselves to the African Peer Review Mechanism (APRM). The APRM is a product of the Sixth Summit of the Heads of State and Government Implementation Committee (HSGIC) of the New Partnership for Africa’s Development (NEPAD), held in March 2003 in Nigeria. At this summit, a Memorandum of Understanding was adopted and since then the APRM is turning out to be the most innovative aspect of NEPAD.[10] Lesotho acceded to the APRM in 2004 and underwent the review in 2009. The first country review report was published in 2010 and a Progress Report in 2011. However, since then there has not been any research undertaken to assess the levels of governance following the APRM. Lesotho has also submitted a number of reports to the human rights treaty bodies in respect of some of the international human rights treaties that she has ratified. Such include reports submitted to the Human Rights Committee in respect of implementation of the International Covenant on Civil and Political Rights (ICCPR) and the report to the Committee on Elimination of Discrimination against Women (CEDAW) as well as the African Commission on Human and Peoples’ Rights.

3. Sources of Lesotho Law

Lesotho does not have a single code containing its laws. These are drawn from a variety of sources. The following are sources of Lesotho law:

• Constitution
• Legislation
• Common Law
• Judicial precedent
• Customary Law
• Authoritative texts

4. Constitution of Lesotho

As stated above, the Constitution of Lesotho came into force after the publication of the Commencement Order in 1993. According to Section 2, the Constitution is the supreme law of Lesotho and if any other law is inconsistent with its provisions, such other law shall to the extent of the inconsistency be void.

5. The Legislature

In Lesotho, the supreme legislative authority vests in the parliament (section 70 Constitution of Lesotho 1993). Parliament may however delegate to such other authorities or persons as it deems fit the power to make rules, by-laws, regulations, orders or other instruments that have the force of law. Constitutionally, legislation refers to laws that have been passed by both houses of parliament and have been assented to by the King (section 78(1) Constitution of Lesotho 1993). Subordinate legislation refers to laws passed by other bodies to which parliament have by virtue of section 70(2) of the Constitution validly delegated its legislative powers. These include government gazettes, ministerial orders, ministerial regulations, and municipal byelaws.

6. Precedent

Lesotho is a common law country as such follows the system of judicial precedents. Precedent assists in consistency in legal interpretation and application of the law. It has also been justified for bringing certainty and uniformity to the law. However, precedent has been blamed for causing rigidity of legal systems, preventing development of the law. In terms of this system, decisions of superior courts of record are binding on lower courts. Given similar legal systems, decisions from South African courts are highly persuasive, and Lesotho courts refer to them in formulating their decisions. Decisions from similar jurisdictions are also cited for their persuasive value.

7. Common Law

Common law, which generally refers to unwritten non-statutory law and excludes customary law, was introduced to Lesotho through General Law Proclamation 2B of 1884. This Proclamation provided that the law to be administered in Basutoland (Lesotho) shall, as nearly as the circumstances will permit, be the same as the law for the time being in force in the Colony of the Cape of Good Hope (now Western Cape, South Africa).[11] The effect of this Proclamation was to create a dual legal system made up of the common law (the received law) and the indigenous customary law. The common law that was applicable in the Cape of Good Hope at the time was a mixture of the Roman-Dutch Civilian law and the English Common Law. Because of this Proclamation, Lesotho’s common law is essentially the same as that of South Africa.

8. Authoritative Texts

Written works of eminent authors have persuasive value in the courts of Lesotho. These include writings of the old authorities as well as contemporary writers from similar jurisdictions, in particular South Africa.

9. International Law

Lesotho has ratified many international instruments. Lesotho belongs to the dualist tradition, thus views international law and domestic law as two separate legal systems. Hence, domestication of international law by an Act of Parliament is necessary before international law can be applied. This of course excludes customary international law, which is binding on all states. Customary international law was applied in the case of Lekhoaba v Minister of Home Affairs in which the court held that although section 41 of the Constitution, which has since been repealed, prohibited dual citizenship, prohibition of statelessness ‘is an immutable principle of the law of nations’ with which Lesotho has to comply.[12] As far as international treaties are concerned, Lesotho courts were initially steadfast in refusing to apply undomesticated international instruments.[13] In Joe Molefi v Government of Lesotho, the court adopted a strict approach to dualism where it demanded that ratified international instruments be incorporated into the domestic law before it could regard their provisions enforceable.[14] In Basotho National Party and Another v Government of Lesotho and Others, the applicants, inter alia, sought an order directing the Government of Lesotho to take the necessary steps, in accordance with its constitutional processes to adopt such legislative and other measures necessary to give effect to the rights recognised in international conventions such as the African Charter on Human and Peoples’ Rights. The Court explicitly stated, “these Conventions cannot form part of our law until and unless they are incorporated into municipal law by legislative enactment.”[15] However, more recently, as the awareness of human rights and states’ international obligations in that regard gained more prominence, although not entirely departing from dualism, the courts have emphasised the need to interpret domestic laws in line with Lesotho’s international human rights obligations. For instance, when interpreting the right to legal representation in DPP v Sole and another,[16]the court made reference to several international human rights instruments including article 7(1) of the African Charter.[17] Later, in the celebrated case of Molefi Ts’epe v The Independent Electoral Commission and Others the highest court in the land confirmed the emerging paradigm shift by referring to several ratified but undomesticated instruments including the African Charter, CEDAW, the SADC Declaration on Gender and Equality, and the International Covenant on Civil and Political Rights (ICCPR). The court specifically referred to article 18(4) of the African Charter despite the fact that the Charter is not domesticated. In an unprecedented move, the court also referred to but did not apply the Women Protocol, which Lesotho had already ratified at that stage but had not yet come into force due to the fact that there were inadequate ratifications.[18] In the case of Fuma v Lesotho Defence Force, when dealing with the right to freedom from discrimination on the basis of disability occasioned by being HIV positive, the court held that ‘[T]he unreservedly ratified United Nations Convention on the Rights of Persons with Disabilities stands not only as an aspirational instrument in the matter, but that by default, it technically assumes the effect of municipal law in the country’.[19]

That is, although in theory Lesotho is categorised as dualist, in practice the courts have invoked Lesotho’s international obligations as far as protection of human rights is concerned. This highlights the important role that international law plays in domestic law; which is giving domestic effect to international obligations assumed by Lesotho under international treaties and the opportunity for individuals to claim rights protected by the conventions to which Lesotho is a party.

Lesotho is now party to the following international instruments (this list is not exhaustive):

• United Nations Charter
• Convention Against Torture (CAT)
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
• Convention on the Rights of the Child (CRC)
• Convention on the Rights of Persons Living with Disabilities (CRPD)
• Convention on the Elimination of All Forms of Racial Discrimination (CERD)
• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Social Economic and Cultural Rights (CESCR)

Lesotho is also party to the following African Instruments:

• African Charter on Human and Peoples’ Rights (10/02/1992)
• Constitutive Act of the African Union (16/02/2001)
• African Charter on the Rights and Welfare of the Child (27/09/1999)
• Treaty Establishing the African Economic Community (12/08/1997)
• African Youth Charter (31/05/2010)
• African Union Convention on Preventing and Combating Corruption (26/10/2004)
• African Convention on the Conservation of Nature (26/10/2004)
• OAU Refugee Convention (18/11/1988)
• Convention on the Prevention and Combating of Terrorism (6/03/2002)
• Protocol to the African Charter on the Rights of Women (26/10/2004)
• Protocol on the Peace and Security Council (30/06/2003)
• Protocol on the African Human Rights Court (28/10/2003)
• Protocol on Amendments to the Constitutive Act of the African Union (26/10/2004)
• Protocol on the Pan-African Parliament (16/04/2003)

10. Customary Law

As stated earlier, Lesotho has a dual legal system consisting of customary and general laws operating side by side. Customary law is made up of the customs of the Basotho, written and codified mainly in the Laws of Lerotholi whereas general law consists of Roman Dutch Law imported from the Cape and the Lesotho statutes. The codification of customary law came about after a council was appointed in 1903 to advise the British Resident Commissioner on what was best for the Basotho in terms of laws that would govern them. Until this time, the Basotho customs and laws were passed down from generation to generation through oral tradition. The council was then given the task of codifying them. It came up with the Laws of Lerotholi, which are applied, by customary courts today (local courts). These Laws of Lerotholi are divided into three parts; however, they remain an incomplete declaration of Sesotho law and custom. Other sources of customary law include Sotho Laws and Customs, [20] Land Tenure in Basutoland,[21] and Mekhoa le Maele a Basotho.[22]

11. The Justice System in Lesotho

Section 118 of the Constitution provides that the judicial power shall be vested in the courts of Lesotho, which shall consist of:

• The Court of Appeal
• The High Court
• Subordinate courts and courts martial;
• Such tribunals exercising a judicial function as may be established by Parliament.

Functions of each of these courts are discussed in detail under the heading ‘the Judicature’ which is in the Chapter outline of the Constitution

12. Chapter Outline of the Constitution

Although Lesotho gained independence from the British in 1966, the political turmoil that followed thereafter stifled constitutional development. In 1993, Lesotho adopted a new Constitution, which asserts its supremacy, and that if any other law is inconsistent with the Constitution that other law shall, to the extent of its inconsistency, be void (section 2). Therefore, Lesotho has constitutional supremacy. The Constitution came into force after the publication of the Lesotho Constitution Commencement Order in 1993.

13.Chapter I – The Kingdom and its Territory

Lesotho is defined as a sovereign and democratic kingdom. This chapter sets out the territorial boundaries of Lesotho, the national seal, the anthem, and the flag. It provides that the official languages of the state shall be Sesotho and English. The supremacy of the Constitution is also set out in this chapter.

14.Chapter II – Protection of Fundamental Rights

This chapter is made up of twenty sections which deal with the protection, derogation from and interpretation of fundamental rights and freedoms as follows:

Section 4	Fundamental rights and freedoms
Section 5	Right to life
Section 6	Right to personal liberty
Section 7	Freedom of movement and residence
Section 8	Freedom from torture and inhuman treatment
Section 9	Freedom from slavery and forced labour
Section 10	Freedom from arbitrary search or entry
Section 11	Right to respect for private and family life
Section 12	Right to fair trial
Section 13	Freedom of conscience
Section 14	Freedom of expression
Section 15	Freedom of peaceful assembly
Section 16	Freedom of association
Section 17	Freedom from arbitrary seizure of property
Section 18	Freedom from discrimination
Section 19	Right to equality before the law and equal protection of the law
Section 20	Right to participate in government
Section 21	Derogation from human rights and freedoms
Section 22	Enforcement of human rights
Section 23	Declaration of emergency
Section 24	Interpretation and savings

 

Section 4 of the Constitution provides that every person in Lesotho is entitled, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to the fundamental rights and freedoms listed above. It provides further that the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms, subject to such limitations of that protection as are contained in those provisions. It goes further to clarify that those limitations shall be designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.

The Bill of Rights shall by virtue of section 4(2) be enforceable by all structures of government, natural or artificial persons as well as private citizens. Thus, the Bill of Rights is both vertically and horizontally enforceable.

Section 22(1) grants the High Court jurisdiction to hear matters turning on a violation of any of the rights enumerated in sections 4 to 21 (inclusive). Subsection (3) further stipulates that where in a matter pending before a subordinate court, a question arises as to the contravention of sections 4 to 21, the presiding officer may and shall if one of the parties so requests, refer the question to the High Court. Such referral may be refused where in the presiding officer opinion is; the raising of the question is merely vexatious or frivolous.

15.Protection of Right to Life

The right to life is protected in section 5 of the Constitution of Lesotho which provides that ‘every human being has an inherent right to life. No one shall be arbitrarily deprived of his life.’ Exceptions to this right are listed in section 5(2) and include defence of any person from violence or in defence of property (section 5(2) (a), in order to effect a lawful arrest or to prevent the escape of a person lawfully detained (section 5(2)(b), in order to suppress a riot, insurrection or mutiny (section 5(2) (c) ) and in order to prevent commission by that person of a criminal offence or if a person dies as a result of a lawful act of war or in execution of a sentence of death imposed by a court.

That is, while life is being protected under the Constitution, death penalty is still retained. Imposition of death penalty is also supported by other laws. For instance, in terms of section 297 of the Criminal Procedure and Evidence Act (CP&E) 1981, a sentence of death by hanging shall be passed by the High Court upon an accused convicted of murder, treason or rape. Furthermore Section 32 (a) (vii) of the Sexual Offences Act also provides for the death penalty in respect of an accused person convicted of rape, who knowingly commits the crime knowing that or having reasonable suspicion to believe that he is infected with HIV.[23] The death penalty cannot, however, be carried out in respect of a person below 18 years of age or a pregnant woman in terms of section 297 (b) and 299 of the Criminal Procedure and Evidence Act respectively.[24] Thus, these provisions indicate a retentionist stance towards the death penalty.[25]

In terms of the CP & E, death penalty shall not be imposed where the courts finds that there are extenuating circumstances.[26] These circumstances include youth, liquor, emotional conflict, the nature of motive, provocation, sub-normal intelligence, general background, impulsiveness, a lesser part in the commission of the murder, the absence of dolus directus, belief in witchcraft, absence of premeditation or planning, “heavy confrontation” between the accused and the deceased before the murder, and the rage of the accused.[27] This broad range of extenuating circumstances coupled with increasing human rights consciousness among judges are arguably the main reasons why the death penalty has not been imposed since 1996[28] and where it has been ordered by the High Court, the Court of Appeal has found some extenuating circumstances as a result of which it commuted the death sentence to imprisonment. For example, in Phumo v Rex[29]the Court of Appeal commuted the death sentence to seven years’ imprisonment; in Rex v Sosolo[30]the Court of Appeal commuted the death sentence to 15 years, while in Sekhobe Letsie and Another v Rex,[31] the death sentence was commuted to life in respect of the second accused. The death penalty remains on the statute books of Lesotho but has not been executed in a long time. This is probably in line with the African Commission’s recommendation that states should observe a moratorium on the death penalty.

Imposition of death penalty is not against Lesotho’s international obligations in as much as international instruments like the International Covenant on Civil and Political Rights, to which Lesotho is party, still recognise state parties’ rights to impose the death penalty pursuant to a final order delivered by a competent court. [32] It is only the Second Optional Protocol to the ICCPR that prohibits the death penalty, however, Lesotho is not party to the Optional Protocol. Likewise, the African Charter does not prohibit death penalty except that the African Commission has called on state parties to the African Charter to observe a moratorium on executions with the view of abolishing the death penalty.[33]

16.Protection of Women’s Rights

As stated above, Lesotho applies both customary law and the general law side by side. In terms of customary law, a woman before marriage is under the guardianship of her father, and therefore a minor, even after attaining the age of 21. Should she get married, her minority status subsists, except that she is placed under the guardianship of her husband, and upon his death, her guardianship is transferred to his heir. Under customary law, a woman is a perpetual minor, and cannot validly contract without assistance from her guardian, i.e. father, husband or husband’s heir. [34] In respect of married women, this was, however, changed when the Legal Capacity of Married Persons Act was enacted.[35] This Act essentially eliminates de jure discrimination against women under personal and some customary laws. It also repeals the marital power that a husband had over the person and property of his wife and confers equal powers on both spouses married in community of property. It gives couples and individuals the right to freely decide the number, spacing and timing of their children thus giving effect to the Women Protocol.[36] Subsequent to the passing of the Act, other statutory laws that were discriminatory against women were amended. These include the Companies Act of 1967, which was amended in 2008 to enable women to become promoters or directors of companies without having to seek their husbands’ consent.[37] The new Land Act of 2010 recognises the right of married spouses to own land jointly irrespective of whether their marriage is a civil one or under customary law. This is an important development because women could not hold title to land under customary law as well as under civil law because the Land Registry Act of 1967, which is now amended by the new Land Act prohibited married women from holding title to land.

It is important to note that Section 18 of the Constitution prohibits discrimination. However, subsection (4) provides that section 18 shall not apply to customary law or personal law, that is, law on marriage, divorce, burial, devolution of property on death, adoption and so on. While the Legal Capacity of Married Persons Act has changed the minority status of married women under customary law, regrettably, the Act has not changed customary inheritance and succession as a result both customary law and section 18(4) of the Constitution remain tools used to discriminate against women. This is manifested in the case of Senate Masupha v Magistrate Berea and others.[38]In this case a daughter of a late principal chief challenged constitutionality of section 10 of Chieftainship Act which limits the right to succession to office of chief to first born male children. Both the High Court sitting as the Constitutional Court and the Court of Appeal dismissed the applicant’s challenge on the ground that such discrimination by section 10 is justified by section 18(4) which exempts customary law from scrutiny under non-discrimination provisions of the Constitution.

Section 30 of the Lesotho Constitution is of particular relevance to women. The Constitution exhibits traits of affirmative action for women only in the Principles of State Policy, which in terms of section 25 are not justiciable. In section 30(a) (i), it calls for equal remuneration for work of equal value for both men and women. It also calls for the creation of equal opportunities of employment for men and women (section 30(c)). Lesotho enacted the Local Government Amendment Act, which requires 30 per cent of local council seats to be reserved for women representatives. The net effect of this has been an improved representation and participatio0n of women in the political sphere.[39] In Molefi Ts’epe v The Independent Electoral Commission and Others the appellant challenged the constitutionality of this law that reserved one third of local government seats for women on the basis that it was discriminatory but the highest court did not agree with his assertion holding that the law was constitutional and in line with Lesotho’s international and regional obligations.[40]

Although the Married Person’s Equality Act 2006 was a milestone in the protection of women’s rights in Lesotho, there are still areas that need attention. For instance, section 44 of the Constitution establishes the office of King and makes no provision for a female to hold that office as head of state in her own right except as a regent. Section 10(2) of the Chieftaincy Act 1968 provides that only a male child may succeed to the office of chief. As stated above the courts have refused to declare this section unconstitutional.

Apart from discrimination with regard to inheritance and succession to chieftainship, women in Lesotho also face the challenge of the high rate of domestic violence. According to Gender Links, about 80% of women in Lesotho have experienced some form of violence at least once in their lifetime. This high prevalence notwithstanding, Lesotho does not have a domestic violence law, as the Domestic Violence Act 2018 has still not been passed into law. As a result, acts of domestic violence are not reported and where they are, perpetrators are charged, convicted and sentenced for minor offences such as assault. This makes it impossible for the courts to impose appropriate penalties on those convicted and to bring to the fore, the serious nature and high prevalence of gender based violence (GBV) in Lesotho.

17. Children’s Rights

The main law that deals with children in Lesotho is the Children’s Protection and Welfare Act (CPWA) 2011, which essentially domesticates the Convention on the Rights of the Child (CRC) and institutionalizes the United Nations Principles on children’s rights. The CPWA is based on three principles of the best interest of the child, evolving capacity and non-discrimination. It covers broad areas of rights of a child and responsibilities of parents and the state. The rights covered include identity of a child, right to registration, right to live with parents and grow up in a caring environment, right to education and health, rights of children with disabilities, right to parental property to mention but a few. The Act also makes provision in respect of children in conflict with the law, age of criminal responsibility, children in need of care and protection, trafficking and abduction of children, parentage, custody and guardianship.

The best interest of the child as provided for in the Act was resorted to by the courts of law in a number of cases involving children in conflict with the law as well as custody of minor children. For instance, In the case of Rex v Malefetsane[41] the court, when confronted with a review of a criminal trial of two accused persons aged sixteen and seventeen year old, held that since the accused were children as defined in the CPWA, the trial court ought not have tried them together with the two adults with whom they were charged with contravention of the Sexual Offences Act. The Court found that their rights, as stipulated in the CRC and the African Children’s Charter had been violated and ordered that they be tried afresh by a different magistrate who must, in the conduct of trial put in mind the best interest of the child principle as expounded in the CRC and the African Children’s Charter.

In Mapetla v Leboela[42] as well as L v M[43]the court applied the best interest of the child principle in custody disputes. In the latter case the court held that the Children’s Protection and Welfare Act provides for the best interest of the child as provided for in the CRC and African Charter on the Rights and Welfare of the Child. The Court further referred to articles 3 and 4 of CRC and African Children’s Charter respectively and held that the High Court had erred by ignoring arguments based on these international instruments as they are ‘authoritative since Lesotho had ratified them in March 1992 and November 1992 respectively.’

Children’s right to education is provided for in section 28(b) of the Constitution which provides that Lesotho shall endeavour to make education available to all and shall adopt policies aimed at securing amongst others that primary education is compulsory and available to all. Prior to 2011, a challenge with this section was that it falls within the non-justiciable portion of the constitution and section 25 of the Constitution clearly stipulates that the provisions contained in the directive principles of state policy (of which the section on education is part) form part of the policy of Lesotho and cannot be invoked in court as justiciable). This challenge was however addressed by both the Education Act of 2010 and the CPWA which provide for education as a right and not just a directive principle of state policy.[44] CPWA provides for a right to access education while the Education Act provides that the main purpose of the Act is to make provision for free and compulsory education at primary level and to make provision for education for all in accordance with the provisions of section 28 of the Constitution.

Lesotho has taken progressive steps towards protection of children’s rights as far as the legal and policy frameworks are concerned. The main challenge that remains is implementation of the Children’s Protection and Welfare Act, in particular as far as orphaned and vulnerable children and children in conflict with the law are concerned.

18.Protection of Disability Rights

According to studies undertaken by the Ministry of Education in 2002 and the Ministry of Health and Social Welfare in 2008, between 4.2 and 5.2 percent of the population has one form of disability or another.[45] According to the 2016 Population and Housing Census, persons with disabilities (PWDs) constitute 2.5 percent of the total population of Lesotho. There is no disability specific law in Lesotho as the Disability Equity Bill has been in a draft not tabled for debate in parliament. Moreover, the Constitution and a few other pieces of legislation such as the Building Controls Act 1995, Education Act 2010, Sexual Offences Act 2003, Youth Council Act 2008, National Assembly Elections Amendment Act 2011, Children’s Protection and Welfare Act 2011 and Penal Code Act 2010 make reference to disability in one way or another.

Section 33 of the Lesotho Constitution makes provisions for the rehabilitation, training and social resettlement of persons with disabilities (PWDs). It enjoins the state to adopt policies designed to facilitate access to employment for PWDs. While this provision seems to lean more towards affirmative action in favour of PWDs, it is non-justiciable. Disability rights appear for the first time under the Principles of State Policy of the Lesotho Constitution, and do not feature elsewhere in the Constitution. Even the non-discrimination clause fails to list disability as a prohibited ground for discrimination; hence, people with disabilities are protected under the general provisions relating to ‘any person’ and ‘other status’.[46] The omission of disability rights in the justiciable provisions of the Constitution is worrisome.

The Buildings Control Act provides for physical access for persons with disabilities in all public buildings.[47] This provision may well be interpreted to provide for ‘special attention’ and accessibility to be given to the rights of people with physical disabilities and to ensure that they get access to public buildings including healthcare facilities as is mandated by the international human rights instruments referred to above. The challenge with this act, however, is highlighted by Lesotho Disability Baseline Study in which it is remarked that this section is not complied with in as much as many public buildings, including the Government Complex, remain inaccessible to wheelchair users.[48]

One of the guiding principles in the Children’s Protection and Welfare Act (CPWA) 2011 is non-discrimination.[49] Furthermore, the CPWA has a specific provision which prohibits discrimination of children on the basis of their disability.[50] It provides further that a child with disability has a right to dignity, special care, medical treatment etc.

With regard to access to justice for persons with intellectual disabilities, in the case of Koali Moshoeshoe & Others v DPP & Others,[51]the Constitutional Court declared section 219 of the Criminal Procedure on the basis of which people with intellectual disability were denied capacity to testify in court because of their mental capacity inconsistent with sections 18 and 19 of the Constitution.

At the international level, Lesotho became the 42nd country to ratify the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) on December 2, 2008. This instrument is the first legally binding international instrument in the realm of disability rights. It, inter alia, protects the right to access education; health care; public transportation services; the right to vote and participate in public and cultural life; and the right to live in the community with one’s family rather than an institution.[52] Lesotho has not yet domesticated the CRPD in that it does not have national legislation on disability rights but has adopted a disability policy, which basically stipulates that government should cater for the disabled by providing user-friendly buildings, catering braille reading for their educational purposes and providing employment. What is left is for the country to ensure that the policy is converted into legislation and that the ideals of the CRPD are domesticated. The binding nature of the CRPD in Lesotho was confirmed by the court in Fuma v Lesotho Defense Force and others[53] Fuma’s case was an application before the Constitutional Court in which Fuma, a soldier of the Lesotho Defence Force (LDF) was retired on medical grounds in terms of section 24 of the LDF Act by the medical board having reached a conclusion that he is legally blind because of inter alia HIV. Fuma contended that the board’s decision to retire him was discriminatory on the basis of his HIV status because there were still other officers in the army who were visually impaired but instead of being retired; they were given other duties in the institution that befitted their condition. He stated that the only factor that influenced the medical board’s decision to retire him was his HIV status. The Court held that in deciding the case, ‘it primarily takes a view that the unreservedly ratified United Nations Convention on the Rights of Persons with Disabilities stands not only as an aspirational instrument in the matter but that by default, it technically assumes the effect of municipal law in the country.

19. Freedom of Assembly, Association and Expression

Freedom of expression is guaranteed by section 14 of the Lesotho Constitution. According to section 14, this is a three-pronged right to hold opinions, to receive ideas and information and lastly to communicate without interference. Section 14 stipulates further that no one may be deprived of this right except with that person’s consent. This right is not absolute in as much as there are instances where it may be legitimately limited, such as in the interest of defence, public safety, public order, public morality or public health. The other limitation which existed for a long time under common law and later included in the Penal Code Act, 2010 is the offence of crimine injuria (criminal defamation). This was applied in the case of R v Motjope in which three accused persons were found guilty of the offence of crimine injuria in that they had made defamatory publications about the then Prime Minister and some members of cabinet by alleging that they gained their political positions such as being ministers and principal secretaries as rewards for adulterous relationship that they had amongst each other. The Court stipulated that in as much as people have right to express themselves in political games, such expression should be exercised within the limits of the law as well as the morals of Basotho as a nation. However, in 2018, in the case of Basildon Peta v Minister of Law and Constitutional Affairs & Others, section 104 of the Penal Code Act which provided for this offence was declared unconstitutional and contradictory to section 14 of the Constitution of Lesotho.[54]

As discussed under access to information, Lesotho has a partly liberalised media, which allows citizens to exercise this right to hold, receive and communicate ideas and information. The media’s freedom of expression is also subject to similar limitations as above.

With regard to freedom of assembly, section 15 of the Constitution provides that: “Every person shall be entitled to, and (except with his own consent) shall not be hindered in his enjoyment of freedom of peaceful assembly, without arms, that is to say, freedom to assemble with other persons.”

This right is also subject to the same limitations as those in section 14. The limitations are further expounded in the Public Meetings and Processions Act of 2010. Amongst others, the Act provides that the police should be given a notice of an intention to hold a public meeting or procession ‘at least seven days prior’ to such a meeting or procession and further that the police shall give a response to such a notice within two days of receipt of notice which response may be to grant or refuse a procession permit. This section was discussed in the case of Lesotho Chamber of Commerce and other v Commissioner of Police and others in which the Lesotho Chamber of Commerce and other trade unions sought an order declaring the decision of the Commissioner of Police to refuse to grant them a procession permit unlawful. The court held inter alia that when exercising their powers under the Act, the police should be inclined to grant permission to hold the meeting or procession unless if the are exceptional and compelling circumstances that threat to harm or peace, public safety, public security or public order is likely to occur. The court went further saying that it is the duty of those who exercise this right to do so in a responsible manner and with restraint and civility. A settlement between the parties was however reached and the procession allowed to take place on a later date than was prayed for in the application.

Freedom of association is guaranteed under section 16 of the Constitution, which states that an individual is free to associate freely with others, unless with that individual’s consent this right has been limited. The constitution guarantees the individual’s freedom to associate freely with other persons for ideological, religious, political, economic, labour, social, cultural, recreational and similar purposes.

The grounds for legitimate limitation of this right are similar to those in sections 14 and 15 dealing with the freedoms of expression and assembly respectively.

All these constitutional rights notwithstanding, civil servants are barred from forming trade unions by the Public Service Act No.1 of 2005. This Act was passed in terms of section 16(c) of the Constitution. They may, however, join staff associations under the Societies Act No.20 of 1966. Such associations do not enjoy the same rights and advantages as trade unions in the private sector. Transmission or receipt of information is also hampered by the Internal Security Act, which criminalises disclosure of certain information in certain circumstances.

20.Chapter III – Principles of State Policy

This chapter contains socio-economic rights as they are not included in chapter II, which is the bill of rights. In this chapter they are referred to as directive principles of state policy (DPSPs). In terms of section 25 of the Constitution, these DPSPs are not enforceable in the courts, hence the argument that they are accordingly meaningless. Section 25 under the Principles of State Policy provides thus:

The principles contained in this Chapter shall form a part of the public policy of Lesotho. These principles shall not be enforceable by any court but, subject to the limits of the economic capacity and development of Lesotho, shall guide the authorities and agencies of Lesotho and other public authorities, in the performance of their functions with a view to achieving progressively, by legislation or otherwise the full realisation of these principles.

This unenforceability was illustrated in the case of Khathang Tema Baitsokoli & Another V Maseru City Council & Others in which street vendors challenged their eviction from the city’s main street.[55] They argued that the Constitutional Court must declare the eviction as a violation of their right to life which is guaranteed under section 5 of the Constitution. The Constitutional Court held that the right to life guaranteed under section 5 does not include soci0-economic rights such as the right to livelihood and further such socio-economic rights are, under section 25, unenforceable in the courts of law. This holding was upheld by the Court of Appeal.

Principles contained in this chapter are:

• Section 26 Equality and justice
• Section 27 Protection of health
• Section 28 Provision of education
• Section 29 Opportunity to work
• Section 30 Just and favourable conditions of work
• Section 31 Protection of workers’ rights and interests
• Section 32 Protection of children and young persons
• Section 33 Rehabilitation, training and social resettlement of disabled persons
• Section 34 Economic opportunities
• Section 35 Participation in cultural activities
• Section 36 Protection of the environment

That is, despite Lesotho having human rights obligations to protect these socio-economic rights, their exclusion from chapter 2 rights and categorisation as DPSPs and not rights renders them unenforceable in the courts of Lesotho. The international obligations in this regard are in terms of both customary international as well as treaty law. For instance, the obligation to ensure equality and non-discrimination, which includes provisions aimed at ensuring equality for all is contained in the Universal Declaration of Human Rights (Universal Declaration)[56] which has become part of customary international law. It is also contained in the other core international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR)[57] and International Covenant on Economic Social and Cultural Rights (CESCR).[58]

The approach which Lesotho has adopted towards socio-economic rights may be attributed to the wording in article 2(1) of the ICCPR and article 2(a1) of the CESCR which differ significantly. The ICCPR provision establishes the obligation ‘to respect and to ensure’ all the rights contained in Part III of the Covenant. It provides as follows:

Each state party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2(1) CESCR provides that:

Each state party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

The difference in terminology is not merely cosmetic but is relevant since article 2 of both covenants specify the general obligations of state parties in relation to each of the substantive rights protected therein.[59] Both articles are contained in Part II of each Covenant which contains provisions establishing the general obligations applicable to all the rights contained in Part III of each Covenant (articles 6 to 27 ICCPR and 6 to 15 CESCR).[60]

The difference in wording reflects the drafters’ perception regarding the implementation of these two sets of rights. This unfortunate line of thinking has permeated human rights thinking and has survived to this day. It was assumed that the two sets of rights required different implementation methods due to their different nature.[61] Civil and political rights were viewed as requiring merely non-interference by the state and could easily be achieved by enacting legislation and adopting administrative measures to achieve such non-interference. The majority of the drafters considered these measures non-resource dependent and of an immediate nature. Consequently, all states were considered able to undertake them immediately without regard to their level of resources. In other words, these rights were thought to be achievable immediately without reference to the socio-economic conditions of a state.[62]

The implementation of socio-economic and cultural rights on the other hand was seen as gradual. They required from the state not merely positive state actions, but also depended on available state resources for their fulfilment.[63] This seems to be the school of thought that influenced the Lesotho provision.

The Committee on ESCR has already held that the concept of other status clearly applied to discrimination on the grounds of disability, both mental and physical. [64]

21. Chapter IV – Citizenship

Citizenship denotes the state of belonging and further guarantees rights of nationality and all other rights flowing from being a national of a particular country. Amongst other inherent rights is the ability to pass citizenship on to natural and adopted children since they cannot obtain their independent citizenship at that stage. This chapter talks about acquisition and loss of citizenship. The various forms of acquisition of citizenship in Lesotho include by descent, operation of law, birth, marriage or registration.

Laws pertaining to citizenship are fraught with discrimination, both against women and men. Section 40, which regulates acquisition of citizenship by marriage, only limits itself to women. From the wording of the Constitution, citizenship by marriage can only be passed by a male national to a foreign female spouse. Foreign men who marry Lesotho citizens do not have the chance of becoming citizens on the grounds of marriage to a citizen of Lesotho.

Section 41 of the Constitution which prohibited dual citizenship has since been repealed. Prior to its repeal, section 41 provided for grounds of cessation of citizenship, which include the attainment of the citizenship of another country by a person above 21 years of age or acquisition of citizenship of another country by marriage. This section had created a number of challenges for Lesotho including brain drain in terms of which citizens abandoned Lesotho citizenship and acquired that of other countries and thus their skills benefitting those other countries to the exclusion of Lesotho. The other was that since Lesotho is geographically in the belly of South Africa, a huge number of Basotho who work and study in South Africa have also married South Africans and were forced to abandon their Lesotho citizenship upon acquiring South African citizenship by virtue of marriage or having stayed in South Africa for a long time. The complexities created by prohibition of dual citizenship by section 41 were highlighted in the case of Director of Immigration v Adam Pholoana Lekhoaba, where the respondent was a citizen of Lesotho by birth. His parents took him to South Africa at an early age; he lived in that country for almost all of his life. In 1987, at the age of seventeen he acquired citizenship of South Africa. In interpreting the Constitution and the Citizenship Order 1972, the Court of Appeal held that the Respondent ought to have denounced his South African citizenship when the Lesotho Constitution came into effect and the fact that he did not do so resulted in him losing his Lesotho citizenship. The court went further to observe that in its view, parliament should give urgent consideration to the desirability of enacting legislation to permit citizens of Lesotho who acquire citizenship of South Africa to hold dual citizenship in appropriate circumstances.[65] The court’s advice is hitherto unheeded.

22. Chapter V – The Office of the King

The King is the head of state and the Prime Minister acts as the head of government. The King’s position is hereditary and accession to the throne is regulated by the Office of the King Order No.14 of 1990. Section 44 of the Constitution stipulates that there shall be a King who shall be a constitutional monarch and a head of state. The College of Chiefs is responsible for the appointment of a successor to the throne. Such appointment for succession may be done in the event of the death of the holder of the office of king or upon any vacancy arising from that office. In terms of section 52, the King may abdicate office, but such action has no effect on the rights of successors to the throne.

Section 53 regulates the removal of the King from office. It obliges the Prime Minister to report to parliament if the King declines to take the oath, or having taken the oath, fails to abide by its terms. Where the King is unable to perform his official duties due to infirmity of body or mind, the prime minister must report to parliament (section 53(1) (a) – (c)).

Upon receiving such a report, each house of parliament shall determine and declare by resolution whether the circumstances warrant the cessation of kingship for that particular person. Where the two resolutions differ, the National Assembly’s resolution shall prevail.

The monarch in Lesotho is a constitutional one, even though executive authority vests in him. The redeeming feature of the Lesotho constitutional arrangement, however, is that in terms of section 86 of the Constitution, this power is exercised through appointed officials. Section 86 provides that the executive authority of Lesotho is vested in the King and, subject to the provisions of this Constitution, shall be exercised by him through officers or authorities of the Government of Lesotho.

It is worth noting that the oath of office of the king obliges the monarch to abstain from the political processes of his country. However, as head of state, his ministers are in the habit of briefing his majesty on governmental business on a regular basis. The oath of office of the King or Regent, which is contained in the schedule to the Constitution, appears below:

In the presence of Almighty God and in the full realisation of the responsibilities and duties of the high office of King (Regent) and of the binding nature and binding force of this Oath, I do swear that I will obey and observe the provisions of the Constitution and all other laws of Lesotho, that I will discharge my duties in such manner as to preserve the character of the monarchy as a symbol of the unity of the Basotho Nation, and that I will accordingly abstain from involving the monarchy in any way in politics, or with any political party or group.

23. Chapter VI – The Legislature

Section 70 of the Constitution confers upon parliament the power to make laws. Section 78 stipulates the procedure for law making in Lesotho. Before a bill can pass into law, it must have been passed by both houses of parliament and assented to by the King. A bill may originate only in the National Assembly (section 78(2)). Once passed by both houses and presented to the King, he must indicate whether he assents or withholds assent. In the event that the King assents, he must cause the bill to be published in the government gazette as law. The Constitution is silent on the period within which the King must declare his assent or otherwise when a bill is presented before him. Section 80 makes an exception to the requirement that a bill must be passed by both houses before it can be submitted for assent by the King. This is in the case of appropriation bills. Section 80(1) provides that when a bill is passed by the National Assembly and that is certified by the speaker of the National Assembly as an appropriation bill is sent to the Senate, it shall forthwith be introduced in the Senate and shall be passed by the Senate without delay. Where Senate fails to pass the bill by the end of the day after the day on which it was sent to Senate or if it is passed by Senate with amendments to which the National Assembly does not agree, the bill with such amendments if any, as may have been agreed to by both houses shall unless the National Assembly otherwise resolves, be presented to the King for assent. This is illustrated in the case of DPE & TRC V Speaker if the National Assembly and others.[66] In this case the Human Rights Commission Bill was sent to Senate on 9 December 2015 for debate. In April 2016, the Clerk of the National Assembly acting pursuant to section 80 (3) of the Constitution and National Assembly Standing Order No. 64 (7) recalled the Bill to the National Assembly since time for Senate’s debate on the Bill had lapsed. Although this recall of the Bill was challenged in court by the two civil society organisations that had planned to make presentations for review of some provisions of the Bill in Senate, the court held that the procedures followed complied with the Constitution and therefore valid.

24. Chapter VII – The Executive

Section 86 states clearly that the executive authority of Lesotho vests in the King and shall be exercised in accordance with the provisions of the Constitution. The King is obliged to exercise such powers through officers or authorities of the Government of Lesotho. It also calls for the appointment of a Prime Minister, from the National Assembly. The appointee shall be the leader of a majority party in the National Assembly (section 87(2)). The Constitution also calls for the establishment of other government ministries, which shall not be less than seven in number, and one of which shall be the office of the Deputy Prime Minister. Ministers are appointed by the King on the advice of the Prime Minister. The candidates are sought from the National Assembly and Senate.

25. Office of the Attorney General

The Attorney General (AG) is the legal advisor to the government. The AG’s office collaborates work with the Ministry of Justice and other ministries on legal matters (section 98).

Section 95 establishes a Council of State whose duty is to assist the King in the discharge of his functions. The AG constitutionally forms part of this body that advises the King. The AG also exercises ultimate authority over the Director of Public Prosecutions (DPP). The AG may perform these functions either personally or through delegation to subordinate officers (section 98(3)).

26. Office of the Director of Public Prosecutions

Apart from the AG’s office, government also makes use of the office of the Director of Public Prosecutions (DPP), mainly in criminal matters. Section 99 establishes the office of the DPP, which is also a public office. The DPP has power to institute criminal proceedings against any person in any court, except for a court martial.

Thus in section 99(2) the Constitution provides that the DPP shall have power in any case in which he considers it proper to do so, to

• institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;
• take over and continue any such criminal proceedings that may have been instituted or undertaken by any other person or authority; and
• discontinue, at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by himself or any other person or authority.

The DPP may exercise the powers listed above either in person or by delegation to subordinate officers (section 99(3)). Further in exercising powers vested in him by section 99(b) and (c), the DPP may not be subject to the direction or control of any other person or authority, save as otherwise provided by the Constitution.

27. Chapter VIII – The Judicature

After gaining independence from Britain in 1966, Lesotho was for some time dependent on the then apartheid South Africa for its judicial personnel. However, currently the High Court and all subordinate courts are manned by Lesotho nationals. As far as the Court of Appeal is concerned, it was only from around 2014 that the trend of having South African judges constituting majority of the bench changed. The latest trend in the court of appeal is to recruit judges from other Southern African countries such as Zimbabwe, Zambia and Namibia and for judges of the High Court to sit as acting judges of the Court of Appeal.

The Constitution provides in article 118 that judicial power shall vest in the courts of Lesotho, which shall consist of:

• The Court of Appeal
• The High Court
• Subordinate Courts and Courts-Martial
• Such tribunals exercising a judicial function as parliament may establish by legislation.

The Constitution further states that the judiciary shall be independent and free from interference, subject only to the Constitution or any other law.

However, in recent years this independence has been threatened by the leverage which the executive, through the Prime Minister, has over appointment and removal of those at the radar of the judiciary.[67] Section 120 of the Constitution provides that the Chief Justice shall be appointed by the King on the advice of the Prime Minister. Appointment of puisne judges of the High Court is done by the King on the advice of Judicial Service Commission. President of the Court of Appeal is appointed by the King on the advice of the Prime Minister (section 124(1)). Section 121(8) of the Constitution provides that judges of the High Court may retire any time after attaining the age of 75.

Lesotho passed the Administration of the Judiciary Act, 2011 that essentially confers both administrative and financial autonomy on the judiciary and establishes the Judicial Service. According to the Chief Justice, ‘this piece of legislation gives practical effect to section 118(3) of the Constitution which provides that the Government shall accord such assistance as the courts may require to enable them to protect their independence, dignity and effectiveness, subject to this Constitution and any other law.’[68]

27.1. The Court of Appeal

Section 123(1) establishes the Court of Appeal of Lesotho, which shall consist of the President, such number of Justices of Appeal as parliament may prescribe. Subsection (1) (c) provides that the Chief Justice and the puisne judges of the High Court may sit in the Court of Appeal ex officio. The Court of Appeal is the final appellate body. It has supervisory jurisdiction over all courts of judicature and over any adjudicating authority.

Section 125(1) provides that a judge of the Court of Appeal shall vacate office upon attaining the prescribed age, unless the judge’s removal is necessitated by other factors, such as inability to perform office functions and misbehaviour (section 125(3)).[69] The prescribed age shall be seventy-five years unless parliament enacts legislation stipulating otherwise.

It is worth noting that Lesotho had a serious dearth of legal expertise at independence but since then, many lawyers were trained and have taken over all the subordinate courts and the High Court. By 1995, the High Court was entirely staffed by locals. For a long time, the Court of Appeal was made up of white South African judges (mostly retired judges and legal practitioners) who sometimes struggled with cases concerning customary law.[70] There was only one Mosotho judge in the Court of Appeal and he is the president of that court. However, since 2014 the trend has changed. Majority of High Court judges sit on the Court of Appeal as ex officio members, and the panels are made up of judges from other Southern African countries such as Zimbabwe, Zambia and Namibia. While the practice of recruiting only white South African judges has changed, it remains unclear why Lesotho is, 50 years post-independence, still holding on to resourcing judges from outside the country when it now has local expertise.

27.2. The High Court

Section 119 of the Lesotho Constitution establishes the High Court of Lesotho. The Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings as well as the power to review the decisions or proceedings of any subordinate or inferior court. It also has review powers over decisions of any court-martial, tribunal, board or officer exercising a judicial, quasi-judicial or administrative function under any law. The Constitution further makes room for parliament to confer additional powers on the High Court by legislation. The High Court also seats as the Constitutional Court and has two other divisions, the Commercial and Land divisions.

In terms of section 22 of the Constitution, the High Court has original jurisdiction to hear and determine applications where any person alleges that his or her fundamental human rights and freedoms as contained in sections 4 to 21 of the Constitution have been, are being or are likely to be violated. When exercising this jurisdiction, the panel of the High Court is composed of three judges. The Land division of the High Court is established in terms of sections 73 and 74 of the Land Act 2010 to determine disputes, actions and proceedings concerning land. The Commercial division of the High Court was established in terms of Legal Notice No.91 of 2009 as a division within the High Court with a mandate to deliver to the commercial community, an efficient, expeditious and cost effective mode of adjudicating disputes that affect the economic, commercial and financial life of Lesotho directly and significantly and to put in place effective measures of streamlining the machinery of judicial resolution of commercial disputes and an accessible judicial and suitable management system.

As stated above, the High Court consists of the Chief Justice and other puisne judges. Parliament has the power to enact legislation stipulating the number of puisne judges required (section 119(2)). A person holding the office of Chief Justice or puisne judge of the High Court shall not vacate office unless he or she attains the prescribed age of 75. Removal from however is possible in case of inability to perform functions (whether arising from infirmity of body or mind or any other cause) and misbehaviour (section 121(3)). The King is responsible for the removal of judges from office but must act on the advice of a tribunal set up to investigate the unfitness of that particular judge from for office (section 121(5)).[71]

27.3. Magistrates’ Court

Magistrates Courts are courts of record created by statute. They are presided over by judicial officers employed as civil servants (magistrates).

27.4. Specialist Courts in Lesotho

Apart from the High Court and Court of Appeal, which are ordinary courts, Lesotho also has specialist courts set up to deal with particular matters. These are creatures of statute, with limited jurisdiction as set out in the legislation establishing them. The Labour Court, Court Martial and Local Courts are examples of specialist courts in Lesotho. The country has now introduced the small claims court in a bid to improve access to justice for indigent citizens. There is emphasis on simple procedure, which ensures speed, simplicity, efficiency, fairness, and economy of expense. For example, there are no lawyers involved and filling fees are reduced to half of the normal court fees.[72]

27.5. The Labour Court

The Labour Court was established by the Lesotho Labour Code 1992 (as amended). It has jurisdiction over matters that touch on industrial relations, i.e. the employer-employee relationship. It hears appeal cases from the Directorate of Dispute Prevention and Resolution (DDPR) which is ‘a semi-autonomous labour tribunal, established in terms of section 46B of the Lesotho Labour Code (Amendment) Act, 2000 (the Act). It is independent of the government, political parties, trade unions, employers and employers’ organizations and its main functions are to attempt to prevent trade (labour) disputes from arising or escalating; resolve trade disputes through conciliation and arbitration; advise employers, employers’ organizations, employees and trade unions on the prevention and resolution of trade disputes; and to compile and publish information about of its activities, statistics on dispute prevention and resolution and significant arbitration awards.’[73] The Labour Court’s decisions can be appealed to the Labour Appeal Court.

27.6. Customary Courts

At the bottom of Lesotho’s court structures are the Local and Central Courts, which are primarily customary courts. A relic of colonial times, these courts were created by the British to deal specifically with issues of that part of the population distinct from the Europeans, that is, the Basotho. The Local Courts were established by the Local Courts Proclamation. They have jurisdiction on matters falling under customary law and can only handle matters involving members of the Basotho nation. Lawyers have always represented clients before these courts; however, the government issued a directive in 2004 to the effect that lawyers should no longer be allowed to appear in the local courts. This directive was successfully challenged by the law society in Law Society of Lesotho v Right Honourable Prime Minister Pakalitha Mosisili and Others[74]in which it was held that the directive was contrary to section 12 (2) (d) of the Constitution and section 20 of the Local and Central Courts Proclamation 62 of 1938 (as amended). These courts have an interesting history, as recounted by WCM Maqutu. [75]

In principle, the customary courts ought to have jurisdiction to hear matters within a particular financial or monetary value, i.e. in terms of the amount claimed or in terms of the sentence (fine) they are entitled to impose. In 1995, however, the maximum jurisdiction of the Local Court was increased from 3 months imprisonment or a fine of M100.00 (about US$ 10.00) to three years imprisonment or a fine of M3000.00 (about US$ 300). The Central Court maximum jurisdiction was increased from 1-year imprisonment or a fine of M1000.00 (US$ 100), to five years imprisonment or a fine of M5000.00 (US$500). While the local and central courts are responsible to dispense justice for many Basotho, the challenge is that the Presidents of these Courts are not equipped with legal training nor are they provided with the Laws of Lesotho, any law textbooks or any other reference materials. Consequently, even those Local and Central Court Presidents who had done a local law certificate recently have no Laws of Lesotho or law textbooks to refer to. The State increased the jurisdiction of Local and Central Courts without bothering to equip them. The High Court showed its displeasure about this situation of Basotho people in rural areas and the villages in M.S. Makesi & 85 Ors v Attorney General & 3 Ors 1989-2001 LLR 740 at page 751 by saying:

The fact is that the liberty of the subject would be at risk in a court manned by an untrained judiciary … An untrained Local Court President whose jurisdiction used to be less than 6 months imprisonment could now sentence an offender to 3 years imprisonment.

28. Office of the Ombudsman

Section 134 of the Constitution establishes the office of the Ombudsman. The holder of this office shall be appointed for a term not exceeding four years. The King on the advice of the Prime Minister is responsible for this appointment. The Ombudsman can be removed from office for inability to exercise the functions of his office or misbehaviour. Incapacity arising from infirmity of body or mind is sufficient for such removal from office. The removal of the Ombudsman from office is governed by section 142(5)-(7), which also governs the removal of the Auditor-General.

The Ombudsman is charged with investigating action taken by any officer or authority in the exercise of the administrative functions of that officer or authority in cases where it is alleged that a person has suffered injustice in consequence of that action (section 135(1)(a)).[76] The persons or authority whose actions the Ombudsman shall investigate include (i) any department of government or any member thereof; (ii) any local government authority and the members and officers of a local authority; and (iii) any statutory corporation and the members and persons in the service of that statutory corporation.

29. Civil and Criminal Court Legal Aid

Section 12 of the Constitution provides for the right to a fair trial which includes amongst others, the right to legal representation. However the section does not specifically provide for the right to provision of legal aid. This silence notwithstanding, Lesotho does offer legal aid in both civil and criminal matters. A legal aid board was established by the Legal Aid Act no. 19 of 1978 with the mandate to ‘make provision for the granting of legal aid to the poor persons and for connected purposes.’ However, challenges with the National Legal Aid include backlog of cases [77] To address this challenge, the Legal Aid Counsel sometimes briefs private lawyers to handle cases referred to legal aid and the fees are paid by the Legal Aid.

30. Legal Aid by Private Institutions

Some private institutions and non-governmental organisations (NGOs) do provide some form of legal aid to indigent persons. Federation of Women Lawyer (FIDA) and Women and Law in Southern Africa Trust are such organisations. However, the mandate of FIDA and WILSA is limited to matters related to gender equality and non-discrimination. As such they handle cases related to amongst others, domestic violence, child maintenance, divorce and property belonging to divorced and/or widowed wives as well as orphaned and vulnerable children.

The Faculty of Law of the National University of Lesotho has also established a Legal Aid Clinic (NULLAC). NULLAC originated as a method of practical legal training for the law school students but grew to encompass the access to justice component, with provision of free professional legal services to the indigent in communities as well as influencing policy and developing future legal aid and civil rights lawyers. In the academic context, the legal aid clinic provides hands on experience to law students who assist with the provision of legal services to various indigent clients, although they carry this mandate under supervision. One of the critical roles of the clinic is to address grave inequalities in society that affect the social wellbeing of people and interact with clients to solve their problems. The NUL Legal Aid Clinic started operating in January 2014.To date, the clinic has provided legal advice and initiated and also defended of a number cases ranging from maintenance, divorce and land disputes involving students and members of the community surrounding the university. It has also engaged in several human rights awareness campaigns.

Although defendants have the right to legal counsel and that such are available as shown above, in magistrates’ courts, some accused persons are not advised of their right to legal representation as a result of which some cases proceed without representation for the accused. However, in cases where this comes to the attention of higher court, this is a valid ground for review.

31. The National Human Rights Institution

The Paris Principles relating to the status of national human rights institutions, competence and responsibilities (Paris Principles) adopted in Paris in 1993 have been accepted as a standard with which all national human rights institutions (NHRIs) must comply in order for them to be considered legitimate and credible. The Paris Principles provide that amongst others a NHRI shall be vested with competence to promote and protect human rights independent of the state. Currently human rights mandate is vested in the office of the ombudsman as discussed below. However the Office of the Ombudsman lacks some of the attributes stipulated in the Paris Principle. Hence there have been steps towards establishment of a Human Rights Commission in the agenda of the Ministry of Justice since 2005 with the UNDP and Irish Aid providing technical assistance as well as funding.[78] There have also been a number of visits by the Ministry of Justice to national human rights institutions in other countries and a lot of research on the model of a human rights institution which can best work for Lesotho. These led to the 6th Sixth Amendment to the Constitution Act of 2011 to include establishment of a Human Rights Commission. Five years later, a Human Rights Commission Act of 2016 was enacted with the aim of setting the Commission in motion. However, to date the Commission has not yet been established.

In terms of the 6th Amendment to the Constitution as well as the Human Rights Commission Act, the commission will be made up of three commissioners who will be appointed for a period of five years and this may be renewable. The Commission will be mandated, amongst others, to visit prisons, investigate all human rights violations and make appropriate recommendations to government. The Commission will also monitor government’s compliance with international human rights law. Even before it becomes operation, there are already doubts about the effectiveness of the Commission taking into account some of the provisions of the 6th Amendment which do not adhere to the Paris principles such as ensuring competence, pluralism and independence of the Commission members. For instance, in order to effectively promote and protect the human rights of all, pluralism in the composition of the Commission is regarded as one of the basic standards that any national human rights institution must meet. According to the Paris Principles, this may be achieved through appointment of its members, whether by means of an election or otherwise, established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of representatives of:

• Non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists and eminent scientists;
• Trends in philosophical or religious thought;
• Universities and qualified experts;
• Parliament;
• Government departments (if these are included, their representatives should participate in the deliberations only in an advisory capacity).

As far as composition is concerned, Section 133B of the amendment provides that the Commission shall consist of a chairman and two other members. Weighing the provisions of the Sixth Amendment against the standard set out by the Paris Principles, one will readily realise that achievement of pluralism is almost impossible for several reasons. One, from a three member Commission, it is difficult to expect representation of Civil society working in areas of human rights because of the diversity of human rights movements themselves; for instance, labour, women, children, detainees, people with disabilities, people living with HIV etc are diverse groups in the human rights movement and thus cannot be represented by one Commissioner. Two, representation of philosophical and religious trends would also be impossible by one Commissioner as there are many divergent religious thoughts such as Christianity and Islam. With academia, there would be no problem. An attempt by two CSOs, DPE and TRC in the case of DPE & TRC v Speaker of National Assembly & Others to have the Human Rights Commission Bill amended to curb the potential threats to independence of the Commission as well as potential lack of pluralism failed, however.[79]

32. Law Reports

Law reports are crucial to the doctrine of judicial precedent. They thus serve a double function; (i) to make public the decisions of the courts, and (ii) to facilitate the effective functioning of the general law of any country. Hence, the need to publish law reports and make them easily accessible to the public and legal practitioners. Lesotho has a law report series known as the Lesotho Law Reports (LLR) and Lesotho Appeal Cases (LAC). According to Sanders, the publication of law reports started as an initiative of Sir Harold Willian in 1953. Sir Willian was a Commissioner for Territories in Southern Africa, namely Basutoland, Bechuanaland and Swaziland and he was Chief Justice in each of these territories.[80] Initially the law reports were published as High Commission Territories Law Reports (HCTLR) by the High Court, Maseru in Basutoland. In 1966 Basutoland and Bechuanaland gained independence as Lesotho and Botswana respectively. The HCTLR ceased to exist, and each country began publishing its own reports.

Cases from South Africa have persuasive value in the courts of Lesotho. South African Law Reports are used to a large extent. South African courts also refer to Lesotho cases, albeit to a very limited extend.[81]

Today Lesotho law reports can be easily accessible online through the SAFLII website as well as the Lesotho Legal Information Institute website.

33. Law Schools

Lesotho has one public university, the National University of Lesotho. The Faculty of Law, which until 9 September 1981 was a Department of Law under the Faculty of Social Sciences, is responsible for legal training in the university. The Faculty used to offer a two-tier six-year programme, consisting of the Bachelor of Arts in Law degree (taken over four years) coupled with the two-year Bachelor of Laws degree. The University has now introduced a five-year LLB programme. Also offered is a three-year LL.B programme for graduates holding a B.A. (Law) or equivalent degree, or graduates from faculties other than law. In 2000/2001 the Faculty began offering a two-year Master of Laws (LL.M) programme which combines course work and research for holders of the LL.B degree.[82] The Faculty also offers Post-Graduate Diploma (PGD) in Labour Law, which focuses on conciliation, mediation and arbitration.

34. Legal Research in Lesotho

Lesotho’s legal instruments are hard to source online. However, there are certain places that are key to any research into the legal system in Lesotho, and these include:

Lesotho Legal Information Institute (Lesotholii). which subscribes to the principles of Free Access to Law Declaration. The Website of Lesotholii is accessed freely and has a data base of judgements, legislations and journals. The Website has judgements of the Court of Appeal, High Court (including Commercial, Constitutional and Land Divisions of the High Court), Labour Court and Labour Court of Appeal. It also has a data base of all legislations: numbered Acts, Subsidiary Legislation and Explanatory Memoranda and other information related to law such as practice directives, Law Society Rules, Small Claims Procedures, Style Guidelines and speeches of the Chief Justices and President of the Law Society.[83]

The Southern African Legal Information Institute (SAFLII) is also a resourceful place to search for any legal instrument for the southern African jurisdictions including Lesotho. It contains both legislation (although not many Acts are uploaded) and law reports of the courts of Lesotho.

The law library at the National University of Lesotho and the High Court library are also resourceful places for undertaking research.

The government website is regrettably not well maintained and has little or no information for legal research.[84]

35. Access to Information

Access to information is not just a basic right but a powerful catalyst for development in a democratic society. The Constitution of Lesotho provides for the right to freedom of expression which encompasses ‘freedom to receive ideas and information without interference.’[85] Lesotho has a partly liberalised media environment that has led to an increase in the number of privately owned print and electronic media outlets which have enabled citizens diversified options for accessing information and expressing their opinions.[86]

While the availability of diverse media is a great improvement in Lesotho, the challenge that remains is that there is no law which ensures access to publicly held information; thus impeding citizens and media from accessing information that would be relevant for democratic participation. An attempt to address this challenge was made in 2000 when the Access and Receipt of Information Bill of 2000 was drafted. However, to date, after its drafting, the Bill has not been passed into an Act of Parliament despite several campaigns by civil society organisations such as Media Institute of Southern Africa –Lesotho (MISA-Lesotho) that have petitioned for passing of this Bill into law.[87]

Further, access to information by PWDs is hindered by the general lack of information presented in Braille and sign language.

36. The Law Society of Lesotho

The Lesotho Law Society, which is a creature of statute, regulates the legal profession. Amongst others, the law society seeks to uphold principles of the rule of law, law reform and regulate admission and conduct of legal practitioners in Lesotho. In Mosuoe v Law Society of Lesotho, the appellant, a citizen of Lesotho, had obtained an LLB degree from the University of Fort Hare, in South Africa. He had also completed his articles, sat for and passed the attorneys’ admission examinations set by the Cape Law Society. In the light of these qualifications, he contended that he should, without further examinations, be entitled to be admitted and enrolled as an attorney in Lesotho, and that to the extent that provisions of the Legal Practitioners Act, 11 of 1983 stood in the way, compliance with those had to be waived by the court. The law society opposed his admission and requested that he write Lesotho’s attorneys examinations as required by the Act. The court agreed with the law society holding that the requirements of the Act were mandatory and could not be waived.[88]

37. Civil Society

Lesotho has a variety of non-governmental organisations working on issues of human rights and related fields, some of which appear below:

• Lesotho Council of NGOs (LCN)
• Transformation Resource Centre (TRC)
• Development for Peace Education (DPE)
• Catholic Commission for Justice and Peace (CCJP)
• Women and Law in Southern Africa Research Trust (WILSA)
• Federation of Women Lawyers (FIDA)
• Survivors of Lesotho Dams (SOLD)
• Seinoli Litigation Centre
• Christian Council of Lesotho (CCL)
• Lesotho Network of AIDS Service Organizations (LENASO)
• Lesotho Network of People Living with HIV and AIDS (LENEPWA)
• Lesotho Red Cross Society (LRCS)

The one notable feature of civil society in Lesotho is the good working relationship it has with the state. Unlike in most African states where civil society, in particular NGOS, are viewed as anti-establishment, in Lesotho there is a healthy working relationship between the two entities. This is evidenced by the ease with which NGOs can access government officials such as ministers. This cosy relationship, however, is not without its negative implications. Given the close affinity between civil society and the state, it becomes almost impossible not to fear that this closeness will weaken the interventions of civil society.

38. Websites Visited

• Centre for Human Rights, University of Pretoria
• National University of Lesotho
• GlobaLex
• Southern African Legal Information Institute
• Lesotho Government Portal
• South African Institute of International Affairs

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[1] BOS 2016 Population Census Available on https://www.bos.gov.ls [Accessed 19 March 2019].

[2] World Bank, ‘The world bank in Lesotho’ [accessed 19 March 2019].

[3]As above.

[4] UN Human Development Report

[5]S Poulter Legal dualism in Lesotho (1981) 1.

[6]Lesotho history and politics: Constitution and political system (accessed 15 April 2012).

[7]Khabele Matlosa, The 1993 Elections in Lesotho and the Nature of the BCP Victory, African Journal of Political Science (1007) Vol 2 No1 140-151, 143. Available here.

[8]WCM Maqutu Contemporary Constitutional History of Lesotho 17

[9]Lesotho history and politics: Constitution and political system.

[10]Lesotho’s APRM Country Review, June 2010, 1.

[11]See Palmer and Poulter, The legal system of Lesotho (1972) 44.

[12] Lekhoaba v Director of Immigration and Another Const./C/3/2007 [2007] LSHC 6.

[13]I Shale, ‘Historical perspective on the place of international human rights instruments in the legal system of Lesotho: moving beyond the monist-dualist dichotomy’ African Human Rights Law Journal (yet to be published 2019 issue)influence of regional human rights law on Lesotho’s domestic legislation and jurisprudence: a critical reflection’ (forthcoming).

[14]Joe Molefi v Government of Lesotho 1967–70 LLR 237. See a conference paper by K Mohau, ‘Protection and redress for victims of crime and human rights violations: adequacy and efficacy of institutions and laws’ in Lesotho Justice Sector Conference Report, 26-30 July 2004, 96 where the author makes reference to this decision.

[15]Basotho National Party and Another v Government of Lesotho and Others (Constitutional case No.5/2002) [2003] LSHC 6 (1 January 2003) (unreported); Moosa and others v Magistrate – His Worship Mr Ntlhakana and others [2007] LSHC.

[16][2001] LSHC 101 (unreported.)

[17]See also Judicial Officers Association of Lesotho v The Prime Minister [2006] LSHC in which the Court referred to articles 7 and 26 of the African Charter and stated that Lesotho is a state party to the African Charter which imposes on it, the duty to guarantee independence of the courts.

[18]For a comprehensive discussion of the case, see F Viljoen & M Nsibirwa ‘Political participation of women in Lesotho: The case of Molefi Ts’epe v The Independent Electoral Commission and Others, Judgement of 30 June 2005’ (2006) 39 Comparative and International Law Journal of Southern Africa 351-360.

[19] Fuma v Commander LDF CONS. Case no. 08/2011 [2013] LSHC 68.

[20]Duncan, Sotho Laws and Customs (O.U.P 1967) cited in Palmer and Poulter, The legal system of Lesotho (1972) 107.

[21]Sheddick, Land Tenure in Basutoland (H.M.S.O 1954) cited in Palmer and Poulter, The legal system of Lesotho (1972) 107.

[22] Sekese, Mekhoa le Maele a Basotho (Morija 1908, reprinted in 1968) cited in Palmer and Poulter, The legal system of Lesotho (1972) 107.

[23] Act No. 3 of 2003

[24] For a more elaborate discussion of the death penalty in Lesotho, see Moses Owori, The death penalty in Lesotho: The Law and practice, BIICL Death Penalty Project.

[25] See generally, Lilian Chenwi, Towards the abolition of the death penalty in Africa: A human rights perspective (2007).

[26]Letuka v. R. 1991-96 LLB &LB 346

[27] As above.

[28] The last execution was in 1996 where a man was found guilty of murder without extenuating circumstances in Nkosi v Rex LAC (1990-94) 538.

[29] Phumo v Rex, CA/CRI/7/90

[30] Rex v Sosolo, CRI/T/13/90

[31] Sekhobe Letsie and Another v Rex, CA/CRI/3 and 4/91

[32] See Article 3 of the ICCPR.

[33] ACHPR/Res 42(XXVI) adopted at the 26th Ordinary session of the African Commission on Human and Peoples Rights held from 1 to 15 November 199 in Kigali Rwanda. See also ACHPR/Res 136 adopted at its 44th Ordinary Session held on 24th November 2008 in Abuja, Nigeria.

[34]K Matashane-Marite Women’s Rights and Participation – Including women’s access to land and inheritance, and the role of lobbying and grassroots organisations in Lesotho, a paper presented before the Expert Group Meeting of the United Nations Division for the Advancement of Women, Bangkok Thailand, 8-11 November 2005, 3.

[35]Act no 9 of 2006.

[36] See Article 14(1) (b) of Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women of which Lesotho is party.

[37] See Lesotho National report submitted to the UN Human Rights Council in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1, A/HRC/WG.6/8/LSO/1 (accessed 10 May 2011).

[38]Senate Gabasheane Masupha v Senior Resident Magistrate for the district of Berea and others C of A (CIV) 29/2013 [2014] LSCA (herein after Masupha)

[39] See Tebello Thabane and Michael Buthelezi, ‘Bridging the gap between de jure and de facto parliamentary representation of women in Africa’Comparative and International Law Journal of Southern Africa, Volume 42 (2) 2008, 175 – 204.

[40] For a comprehensive discussion of the case, see F Viljoen & M Nsibirwa ‘Political participation of women in Lesotho: The case of Molefi Ts’epe v The Independent Electoral Commission and Others, Judgement of 30 June 2005’ (2006) 39 Comparative and International Law Journal of Southern Africa 351-360.

[41] R v Malefetsane Mohlomi and others Review Case No. 06/2013 [2013] LSHC 27.

[42] Mapetla v Leboela C of A (CIV) No.44/11 [2012] LSCA 2.

[43] Lesala v Morojele C of A (CIV) 29/2011 2011) LSCA 29.

[44] Children’s Protection and Welfare Act 2011 (CPWA) Section 11(1). See also Education Act 2010 section 3.

[45] Bureau of Statics (BOS) (accessed 15 October 2014).

[46]See Constitution of Lesotho 1993, section 26.

[47] Buildings control Act 1995 section 19.

[48] Communities of practice in disability advocacy for mainstreaming (COPDAM) Baseline Study: Lesotho 2013 Report (Disability baseline study).

[49] Children’s Protection and Welfare Act section 6.

[50] As above.

[51] Koali Moshoeshoe & Others v DPP & Others Constitutional Case No. 14 of 2017 (unreported).

[52]Lesotho Ratifies Disability Rights Treaty (accessed 10 May 2012).

[53] Thabo Fuma v Lesotho Defence Force and Others CONST/8/2011 [2013] LSHC 68.

[54] Basildon Peta v Minister of Law and Constitutional Affairs & Others Constitutional Case No.11 of 2016

[55] Khathang Tema Baitsokoli & Another v Maseru City Council & Others C of A (Civ) 4/2005

[56] Adopted by General Assembly Resolution 217 A (III) of 10 December 1948.

[57]Entered into force 23 March 1976.

[58]Entered into force 3 January 1976.

[59]Sepúlveda n70, 119.

[60]As above.

[61] As above.

[62]See ICCPR Committee General Comment No.31 [80] Nature of the General Obligation Imposed on States Parties to the Covenant: 26/05/2005, para 14, where the Committee states that the requirement under art 2(2) to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the state.

[63] Sepúlveda n70 above, 120.

[64]Committee on Economic, Social and Cultural Rights, General Comment No.5, Persons with Disabilities, (Eleventh Session, 1994) UN DOC E/1995.22 at 19 (1995), para 5.

[65] C of A (CIV) No. 22/07

[66] DPE & TRC v Speaker of National Assembly & Others Constitutional Case No.5/2016

[67] I. Shale ‘Independence and accountability of the judiciary in Lesotho: The need for reform of the constitutional processes for appointment, discipline and removal of judges’ (2018) 26 (1) Lesotho Law Journal 167 – 195

[68] The ceremonial opening speech of the High Court session 2012 by his Lordship the Chief Justice, Honourable ML Lehohla, 1 February 2012.

[69] The President of the Court of Appeal v The Prime Minister & Others C of A (Civ) No.62/2013; See also Mosito & Others v Letsika & Others C of A (Civ) No. 9/2018.

[70] Extract from a paper by WCM Maqutu, The Judiciary of Lesotho over the past forty years (unpublished).

[71] Chief Justice Nthomeng Majara v The Prime Minister and Others Constitutional case of 2018 (pending).

[72] See Judiciary Reforms – Small Claims Court (accessed 10 April 2012).

[73]See Directorate of Dispute Prevention and Resolution (DDPR) (accessed 15 April 2012)

[74] Law Society of Lesotho v Right Honourable Prime Minister Pakalitha Mosisili and Others (Constitutional Case No. 2/04) (accessed 15 May 2012).

[75] Extract from a paper by WCM Maqutu, The Judiciary of Lesotho over the past forty years (unpublished).

[76] On the effectiveness of the Ombudsman, see generally Kapa, MA (2009) Promoting the Effectiveness of Democracy Protection Institutions in Southern Africa: The Office of the Ombudsman in Lesotho, EISA Research report No 39 (accessed 5 May 2012).

[77] U.S. Department of State

[78] See UN OCHR Paris Principles: 20 Years Guiding the Work of national Human Rights Institutions; Lesotho Ministry of Justice and Correctional Services tasked, among other things, also with protection and promotion of human rights; Lepeli Moeketsi, OP: ED: Another Setback to Human Rights Under Prime Minister Thabane’s Administration, The Night’s Watch (May 25, 2019). Also see generally, The NGO Web: Khokanyana’s Phiri Newsletter (January-March 2013 issue). Also see Kingdom of Lesotho, United Nations development Programme, Strategy Document for Consolidation of Democracy and Good Governance in Lesotho (CDGG), Irish Aid, Department of Foreign Affairs (January 30, 2009).

[79] DPE & TRC v Speaker of National Assembly & Others (n 68 above).

[80] AJGM Sanders Law Reporting in Swaziland (accessed 10 October 2007).

[81]See Marita Carnelley and Shannon Hoctor, Lesotho Appeal Cases vols 1 – 4, K.A. Maope (Ed.) book review, South African Law Journal 128 (2011) 384 – 390.

[82] NUL Faculty of Law

[83] Lesotholii

[84] Government of Lesotho website

[85] Section 12 Constitution of Lesotho 1993

[86] M Kapa ‘Lesotho- Political participation and democracy’ OSISA 7 May 2013 (accessed 15 October 2014).

[87] See MISA (accessed 15 October 2014).

[88] Mosuoe v Law Society of Lesotho (C of A (CIV) N0.23/09).