The Law and Legal Research in Lesotho

By Buhle Angelo Dube

Angelo Dube holds a B.A. (Law), LL.B from the University of Swaziland and an LLM in Human Rights and Democratisation in Africa from the Centre for Human Rights (University of Pretoria). Angelo founded and heads the Centre for Human Rights and Development and also serves on the boards of trustees of the Centre for Minority Rights and Development (Cemiride) Zimbabwe.

Published February 2010

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Introduction

The Kingdom of Lesotho is totally encircled within 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 with a population of approximately 2 million people. The country’s leadership is a ceremonial kingship with multiparty democracy and a prime minister. Since independence, Lesotho has been characterised by instability, controversy and conflict. About 76 per cent of the people dwell in the rural areas. In terms of the UNDP Human Development Report (2010), Lesotho ranks number 141 out of 169 states. Together with Swaziland, Namibia and South Africa, Lesotho belongs to a common currency and exchange control area known as the Common Monetary Area.

Historical Overview

Lesotho was established by King Moshoeshoe I about 200 years ago. The government perceives the inhabitants as ethnically and linguistically homogenous. However, Lesotho does have a level of heterogeneity in its population as a Xhosa minority group exists. 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. In 1965, a year before independence, an election was held, with four parties contesting. The Basuto National Party (BNP) scooped about 42% of the total votes to emerge victorious. On 4 October 1966, Lesotho finally gained her independence from the British and inherited a Westminster type constitution. This constitution provided for a prime minister, who was the leader of the majority party, and exercised executive power as the head of government. [1]

Similar to the Swaziland King’s usurpation of power in 1973, [2] Lesotho’s then ruling majority party, the BNP declared the Kingdom as a one-party state. Chief Leabua Jonathan, then leader of the BNP refused to accept the party’s defeat by the opposition Basutoland Congress Party (BCP) at elections, and this led to almost 15 years of one-party rule, characterised by brute force to induce compliance. This was the first coup d’etat. The BCP joined forces with the Lesotho Liberation Army and ousted Jonathan’s government in 1986 (the second coup). This was led by General Metsing Lekhanya, who in turn was displaced by his junior officers within the army in 1990.

On 16 March 1993, the Lesotho Constitution Commencement Order (Commencement Order) was published and the Constitution came into force on 2 April 1993. The 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.

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, and then Crown Prince David Mohato). He took the throne with a formal coronation on 31 October 1997 as King Letsie III. The era of military dictatorship between 1986 and 1993 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. The period between 1993 and 2002 was a marked departure from authoritarian rule, but the young democracy remains fragile.

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 and 1994.

Quite interestingly, 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. [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

Constitution of Lesotho

As stated above, the Constitution of Lesotho came into force after the publication of the Commencement Order.

The Legislature

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)). Subordinate legislation refers to laws passed by other bodies to which parliament has by virtue of section 70(2) of the Constitution validly delegated such legislative powers. These include government gazettes, ministerial orders, ministerial regulations and municipal byelaws.

In Lesotho, the supreme legislative authority vests in the parliament (section 70). 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.

Precedent

Precedent forms part of the law of Lesotho. 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. Decisions of superior courts of record are therefore binding on lower courts. Decisions from South African courts are only persuasive, and courts refer to them in formulating their decisions. Decisions from similar jurisdictions can also be cited for their persuasive value. Magistrates’ courts decisions do not become precedent since these are lower courts. They are however bound by decisions of the High Court and the Court of Appeal.

Common Law

Although Lesotho shares with South Africa, Botswana, Swaziland, Namibia and Zimbabwe a mixed general legal system that resulted from the interaction between the Roman-Dutch Civilian law and the English Common Law, its general law operates independently. Lesotho also applies the common law, which refers to unwritten law or law from non-statutory sources, but excludes customary law.

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.

International Law

Lesotho is signatory to 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. 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 (CCPR)

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)

Customary Law

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 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, came up with the Laws of Lerotholi, which are applied, by customary courts today (local courts).

The Justice System in Lesotho

At the apex of the Lesotho justice system is the Court of Appeal, which is the final appellate forum on all matters. It has a supervisory and review jurisdiction over all the courts of Lesotho.

The High Court is second after the Court of Appeal, and it is vested with powers to handle matters with a constitutional bearing. It also has unlimited original jurisdiction in civil and criminal matters. Parallel to the High Court is the Labour Court, which is a specialist court, dealing exclusively with industrial and labour matters. Magistrates Courts follow below the High Court. Local Courts were set up to deal with issues involving customary law.

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

(a) The Court of Appeal

(b) The High Court

(c) Subordinate courts and courts martial

(d) Such tribunals exercising a judicial function as may be established by Parliament.

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.

Below is a chapter-to-chapter analysis of the Lesotho Constitution.

Fundamental rights and freedoms Section 4

Protection of right to life Section 5

Protection of right to personal liberty Section 6

Protection of the freedom of movement Section 7

Protection from inhuman or degrading treatment Section 8

Protection from slavery and forced labour Section 9

Protection against arbitrary search or entry Section 10

Right to respect for private and family life Section 11

Right to a fair trial Section 12

Freedom of conscience Section 13

Freedom of expression Section 14

Protection of freedom of peaceful assembly Section 15

Protection of freedom of association Section 16

Protection from arbitrary seizure of property Section 17

Freedom from discrimination Section 18

Equality before the law Section 19

Right to participate in government Section 20

Enforcement of protective provisions Section 22

Rights and freedoms of women Section 30

Protection of children and young persons Section 32

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.

Chapter II – Protection of Fundamental Rights

This chapter deals with the protection of fundamental rights and freedoms. It 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 fundamental rights and freedoms. It goes on to list these rights and freedoms, which include the right to life, personal liberty, freedom of expression, movement and freedom from inhumane and degrading treatment.

The Constitution states in section 4(1) that 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 as well as artificial persons.

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’s opinion; the raising of the question is merely vexatious or frivolous.

Protection of Right to Life

Lesotho still retains the death penalty. Whilst section 5 states that no person shall be deprived of life, it permits the use of the death penalty in the execution of the sentence of a court in respect of a criminal offence of which that person has been convicted. Further, the right to life can be taken away in defence of any person from violence or for defence of property (section 5(2) (a)). Human life taken in order to suppress a riot or mutiny shall not be deemed to have been arbitrarily taken away (section 5(2) (c)). These provisions indicate a retentionist stance towards the death penalty and fall short of the country’s obligations under international law. The Second Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty,[4] and African Charter on Human and Peoples’ Rights,[5] offer a more elaborate provision for the protection of the right to life. These two provide for optimum enjoyment of the right to life, and the Protocol goes further to require state parties to abolish the death penalty in their jurisdictions.[6] Imposition of the death penalty itself is not only a violation of the right to life, but also a form of cruel, inhuman or degrading punishment or treatment. It is worth mentioning that Lesotho has not used the death penalty since 1992 and death sentences are normally commuted to life sentence. The death penalty does however remain on the statute books as a deterrent.

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. [7]

Women’s access to land under Lesotho customary law is a bit cumbersome. The land tenure system in Lesotho is still based on the dual legal regime operating in that jurisdiction, which is civil law and customary law. Women’s legal status as minors prevents them from full enjoyment of land rights or having security of tenure in land. The Lands Registry Act of 1967 specifically provides that no land shall be registered in the name of a married woman. [8]

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 injusticiable. 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)).

For a long time, customary law in Lesotho remained (and to some extent still is) an obstacle to the full enjoyment of many fundamental rights by women. Many gender-biased actions are undertaken and sanctioned under custom, and these have a negative impact on women. Lesotho can take a leaf from the Swaziland Constitution in trying to eliminate gender-based discrimination against women. The Swaziland Constitution has one of the most progressive provisions in section 28(3), which if implemented could help prevent the widespread violation of women’s rights under customary law. This section provides that a woman cannot be forced to undertake a custom to which she is by virtue of conscience opposed. A provision couched in these terms can go a long way in the protection of women’s rights, provided the political will to implement such a provision exists.

The enactment of the Married Person’s Equality Act 2006 was a milestone in the protection of women’s rights in Lesotho. The Act abolishes the marital power of the husband and gives women to access credit in their own name. This Act effectively overturns the hitherto requirement for married women to require assistance of their spouses to validly enter into any contracts. It is not clear however, how many women know of this piece of legislation’s existence, particularly those whose lives are governed by and revolve mainly around customary law.

In 2004, Lesotho established a Gender and Child Protection Unit. The country also 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.

Children’s Rights

Section 28(b) of the Constitution, which deals with education, falls within the non-justiciable portion of the constitution. It provides that primary education is compulsory and available to all. In Section 25, 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).

Lesotho has a policy aimed at promoting access to education for all children. Hence, the Primary Education and Education for All Policy of 2000 was enacted. There are currently moves to develop an Education Draft Bill (2008) to provide for free and compulsory primary education.

Protection of Disability Rights

Section 33 of the Lesotho Constitution makes provision 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. [9]

The Constitution of Lesotho in 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.

These seemingly progressive provisions and the rights contained therein cannot be enforced. They are merely aspirations of the government of Lesotho, and shall form part of the state policy. In such circumstances where disability-specific rights are not spelt out, resort should be had to the prohibition of non-discrimination and the notion of equality that apply to all human beings, whether PWDs or not, by virtue of their humanity. This however, can be cured by affirmative action provisions in national legislation.

Lesotho is bound by international customary law, which includes provisions aimed at ensuring disability rights. The Universal Declaration of Human Rights (Universal Declaration)[10] guarantees the full range of rights, civil, political, economic, social and cultural for both PWDs and non-PWDs.[11] Between 1948 and the 1960s when the International Covenant on Civil and Political Rights (ICCPR)[12] and International Covenant on Economic Social and Cultural Rights (CESCR)[13] were adopted, there was a move to adopt a binding international instrument that espouses the rights set out in the Universal Declaration, hence prior to the adoption of the ICCPR and CESCR, a single legal instrument containing the whole cluster of rights was envisioned.[14] However the drafters were divided and this influenced the wording of the two instruments. This was due to the perception that civil and political rights are capable of immediate implementation since they ‘cost’ the state nothing, whilst socio-economic rights require economic resources for their enforcement. Article 25 of the Lesotho Constitution mirrors this line of thinking. It provides that the Principles of State Policy shall act as a guide to the state but will be limited by availability of resources.

As a result, the two articles 2(1) of the ICCPR and CESCR 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 specifies the general obligations of state parties in relation to each of the substantive rights protected therein. [15] 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).[16]

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.[17] 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.[18]

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.[19] 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.[20]

Section 3(1) of the Constitution provides that the official languages shall be English and Sesotho. The Constitution fails to recognise Sign Language as a language. This impacts heavily on PWDs, as they cannot easily access information in a language they are comfortable with. Language is not only a means of identity, but today language acts as a determinant of one’s proficiency to enter the labour market. PWDs run the risk of being shut out from employment, education and social spheres of life simply because of socially created language barriers. To remedy this situation, Lesotho can take lessons from the South African Constitution, section 6. Although section 6 does not list sign language amongst the 11 official languages, it recognises the historically diminished use and status of certain languages, and the need to take practical and positive measures to elevate the status and use of these languages. It further provides for the establishment of a Pan South African Language Board, whose responsibility shall be to promote and create conditions for the development and use of all official languages, including sign language.[21] The South African Constitution clearly recognises the need for PWDs to express themselves in a language of their own, sign language and further prohibits discrimination on the basis of disability in section 9(3).

Lesotho does not yet have national legislation on disability rights. There is 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.

Freedom of assembly, association and expression

Freedom of expression is guaranteed by section 14 of the Lesotho Constitution. This provision stipulates that no one may be deprived of this right except with that person’s consent. It further lists instances where this right might be legitimately limited, such as in the interest of defence, public safety, public order, public morality or public health.

Section 15 provides for the freedom of peaceful assembly. It provides thus:

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. Section 16 guarantees the individual’s right to freedom of association. To that end, the provision states that an individual is free to associate freely with other, 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 nondisclosure of certain information in certain circumstances.

Chapter III – Principles of State Policy

Many of the key rights that ought to have been included in the bill of rights have been provided for under the chapter dealing with principles of state policy (Chapter III) which are not enforceable in the courts, and are accordingly meaningless. A good example would be section 33 on the re-integration of PWDs into mainstream society and ensuring their access to employment. Section 26 also provides that Lesotho shall promote a society based on equality and justice through the adoption of relevant policies. It further calls upon the state to take appropriate measures in order to promote equality of opportunity for disadvantaged groups in society to enable them to fully participate in all spheres of life. Such vulnerable groups would include PWDs, women and children. The omission of disability rights in the justiciable provisions of the Constitution is worrisome.

The inclusion of these rights under the directive principles of state policy makes it difficult for the judiciary to enforce them, or for any aggrieved citizen to pursue them.

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 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 or birth, marriage or by 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.

Dual citizenship is prohibited under the Lesotho Constitution (section 41). The Constitution also provides for grounds of cessation of citizenship, which include the attainment of the citizenship of another country by a person above 21 years of age. This precludes acquisition of citizenship of another country by marriage (section 41(2) (a)).

Chapter V – The Office of the King

The King in Lesotho 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 once every week.

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.

Chapter VI – The Legislature

Section 70 confers upon parliament the power to make laws. Section 78 thereof stipulates the procedure for lawmaking 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.

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 then 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 either the National Assembly or Senate.

Office of the Attorney General

The Attorney General (AG) is 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)).

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

(a) 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;

(b) take over and continue any such criminal proceedings that may have been instituted or undertaken by any other person or authority; and

(c) 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.

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. Until recently, Lesotho’s judges and magistrates came from South Africa and had to reconcile the Basotho way of life with the European mode of life. The judiciary also had to reconcile the British created central government and Basotho local government operated by chiefs.

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 by legislation establish.

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

Section 120 of the Constitution provides that the Chief Justice shall be appointed by the King on the advice of the Prime Minister, while the appointment of puisne judges of the High Court is done by the King on the advice of Judicial Service Commission. For justices of appeal shall be appointed by the King on the advise of the Prime Minister (section 124(1)).

Section 121(8) of the Constitution provides that judges of High Court courts may retire any time after attaining the age of 75.

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 (it refers to a judge of lower rank, such as when referring to judges of the High Court, comparing them to judges of the Supreme Court or Court of Appeal; the Lesotho Constitution adopts this terminology) 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)). The prescribed age shall be seventy-five years unless parliament enacts legislation stipulating otherwise.

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 is also has revisional power over decisions of any court-martial, tribunal, board or officer exercising a judicial, quasi-judicial or administrative functions under any law. The Constitution further makes room for parliament to confer additional powers on the High Court by legislation.

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)).

Magistrates’ Court

Magistrates Courts are creatures of statute. They are presided over by judicial officers employed as civil servants (magistrates). They are not courts of record and as such, their decisions are not binding.

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 and Local Courts are examples of specialist courts in Lesotho. Lesotho does not; however have small claims courts as the idea of a commercial court never took off. This has the effect of denying the indigent aggrieved person the opportunity to access justice.

Be that as it may, in 2000, Lesotho established the Commercial Court to deal with disputes and promote an investor friendly environment. This was aimed at limiting governmental interference. The court also had the function of acting as a protective framework for lenders against delinquent borrowers. The court’s shortcomings included the fact that its cases had to be first registered with the High Court, thus causing delays. The Specialised Commercial Court was set up to remedy the shortcomings of the Commercial Court in 2008. It is financed by the Millennium Challenge Account. Its aim is to promote faster, fairer and less expensive resolution of commercial disputes, whether large or small.

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.

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. Legal representation is in terms of the Act not allowed in proceedings of these courts.

These courts have an interesting history, as recounted by WCM Maqutu in an unpublished paper (9 November 2006). [22]

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$ 14.50) to three years imprisonment or a fine of M3000.00 (about US$ 434). The Central Court maximum jurisdiction was increased from 1-year imprisonment or a fine of M1000.00 (US$ 144), to five years imprisonment or a fine of M5000.00 (US$724). The Presidents of the Central and Local Courts remained untrained and unprovided with the Laws of Lesotho or any law textbooks. 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 can now sentence an offender to 3 years imprisonment.

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)). 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.

Although the Constitution is silent on legal aid, Lesotho does offer legal aid in both civil and criminal matters. A legal aid board was set up by statute as the implementing body for such legal aid. Cases in the legal aid department take long to complete and there is no systematic manner of handling cases thus resulting in back log of cases. Although defendants have the right to legal counsel, in magistrates’ courts, some accused persons are not advised of their right to legal representation. In some cases proceedings continued without representation for the accused. [23]

Certain private institutions such as non-governmental organisations (NGOs) do provide some form of legal aid to indigent persons. This is done in matters such as domestic or sexual abuse. Since these are donor-funded entities, their interventions are usually limited by donor preferences and scarcity of funds.

According to United States Department of State Country Reports on Human Rights Practices (2006), [24] few legal aid clinics are maintained by NGOs. There is a great need for an increase in the number of such organisations. There is also need to address the competing interests of private practice and working for legal aid NGOs. Whilst some NGOs are able to attract good personnel through favourable salaries and employee benefits, the turn over is otherwise high due to management styles that do not go down well with their personnel. There is need to address the founder’s syndrome in some NGOs that offer legal aid, to prevent high staff turn over and ensure retention of qualified personnel and efficiency of the services provided.

The National Human Rights Institution

As of November 2010, Lesotho as still in the process of setting up a national human rights institution. A draft bill on the establishment of the Commission had been submitted by a consultant to government for consideration. 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.

Law Reports

Law reports are crucial to the doctrine of judicial precedent.[25] 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). 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. 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.

Today Lesotho law reports can be easily accessible online through the SAFLII website.

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 offers two parallel programmes in law. One is 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 is in the process of phasing out this programme, and has 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.[26]

Like most African countries, 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:

The Southern African Legal Information Institute (SAFLII) is a very resourceful place to search for any legal instrument for the southern African jurisdictions. 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 is also a resourceful place for undertaking research.

The government website which seems to be under construction will also useful in legal research online once it is fully updated with legal materials.[27]

Access to Information

Like in most African states, access to legal information is limited by technological constraints. Documents like government gazettes, Acts of Parliament and law reports are hard to access online. Even the government websites are not helpful in this regard.

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

The Law Society of Lesotho

Like all professional bodies, 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.

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

Women and Law in Southern Africa Research Trust

Lesotho National Council of Women

Federation of Women Lawyers (FIDA)

Institute for Southern African Studies (ISAS)

Christian Council of Lesotho

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.

Websites Visited

Lesotho Council of NGOs

Centre for Human Rights, University of Pretoria

National University of Lesotho

GlobaLex

African Union

Southern African Legal Information Institute

Lesotho Government Portal

[1] 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.

[2] BA Dube & AS Magagula, The Law and Legal Research in Swaziland, available here.

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

[4] Article 1.

[5] Article 4.

[6] Lesotho is a signatory to both the ICCPR and its Protocol.

[7] 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.

[8] As above.

[9] See section 26 Lesotho Constitution.

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

[11] From art 1 to 30, the Universal Declaration lists fundamental entitlements without differentiation as to their socio-economic or civil and political nature.

[12] Entered into force 23 March 1976.

[13] Entered into force 3 January 1976.

[14] M Sepúlveda The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003) 115.

[15] Sepúlveda n13, 119.

[16] As above.

[17] As above.

[18] 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.

[19] Sepúlveda n13 above, 120.

[20] 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.

[21] Art 6(5).

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

[23] http://www.state.gov/g/drl/rls/hrrpt/2006/78741.htm

[24] As above.

[25] AJGM Sanders Law Reporting in Swaziland available here (accessed 10 October 2007).

[26] http://www.nul.ls/faculties/law

[27] http://webcache.googleusercontent.com/search?q=cache:http://www.lesotho.gov.ls/