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 also serves
on the boards of trustees of the Centre for Minority Rights and Development
(Cemiride) Zimbabwe and the Centre on Human Rights and Development, Swaziland.*
Published February 2008
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Table of Contents
Introduction
Historical Overview
Sources of Lesotho Law
Constitution of Lesotho
The Legislature
Precedent
Common Law
Authoritative Texts
International Law
Customary Law
The Justice System in Lesotho
Chapter Outline of the Constitution
Chapter I –The Kingdom and its Territory
Chapter II – Protection of Fundamental Rights
Protection of the Right to Life
Protection of Women’s Rights
Protection of Disability Rights
Chapter III – Principles of State Policy
Chapter IV – Citizenship
Chapter V – The Office of the King
Chapter VI – The Legislature
Chapter VII – The Executive
Office of the Attorney General
Office of the Director of Public Prosecutions
Chapter VIII - The Judicature
The Court of Appeal
The High Court
Magistrates’ Court
Specialist Courts in Lesotho
The Labour Court
Customary Courts
Office of the Ombudsman
Civil and Criminal Court Legal Aid
Legal Aid by Private Institutions
The National Human Rights Institution
Law Reports
Law Schools
Legal Research in Lesotho
Access to Information
The Law Society of Lesotho
Civil Society
Websites Visited
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.
Historical Overview
Lesotho gained her independence from the
British on 4 October 1966 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 Basuto National Party (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. The BCP joined forces with
the Lesotho Liberation Army and ousted Jonathan’s government in 1986.
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.
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
bye-laws.
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
which 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.
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,[3]
and African Charter on Human and Peoples’ Rights,[4]
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.[5]
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.[6]
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.[7]
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.
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.[8]
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)[9]
guarantees the full range of rights, civil, political, economic, social and
cultural for both PWDs and non-PWDs.[10]
Between 1948 and the 1960s when the International Covenant on Civil and
Political Rights (ICCPR)[11]
and International Covenant on Economic Social and Cultural Rights (CESCR)[12]
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.[13]
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.[14]
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).[15]
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.[16]
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.[17]
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.[18]
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.[19]
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.[20]
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.
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
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.
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.
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
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.
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.
Civil
and Criminal Court Legal Aid
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.[21]
Legal
Aid by Private Institutions
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),[22] 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
Lesotho is in the process of
setting up a national human rights institution. A draft bill on the
establishment of the Commission has 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.[23]
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.
Law
Schools
Lesotho has one 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.[24]
Legal
Research in Lesotho
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.[25]
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)
Websites
Visited
Centre for Human Rights,
University of Pretoria
National University of Lesotho
Southern African Legal
Information Institute
[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 at
http://archive.lib.msu.edu/DMC/African%20Journals/pdfs/political%20science/volume2n1/ajps002001008.pdf
[2] BA Dube & AS
Magagula, The Law and Legal Research in Swaziland, available at Swaziland.htm
[3] Article 1.
[4] Article 4.
[5] Lesotho is a signatory
to both the ICCPR and its Protocol.
[6] 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.
[7] As above.
[8] See section 26 Lesotho
Constitution.
[9] Adopted by General Assembly Resolution 217
A(III) of 10 December 1948.
[10] From art 1 to 30, the
Universal Declaration lists fundamental entitlements without differentiation as
to their socio-economic or civil and political nature.
[11] Entered into force 23 March 1976.
[12] Entered into force 3 January 1976.
[13] M Sepúlveda The Nature of the Obligations
under the International Covenant on Economic, Social and Cultural Rights (2003)
115.
[14] Sepúlveda n13, 119.
[15] As above.
[16] As above.
[17] 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.
[18] Sepúlveda n13 above, 120.
[19] 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.
[20] Art 6(5).
[22] As above.
[23] AJGM Sanders Law
Reporting in Swaziland available at
http://www.jstor.org/jstor/gifcvtdir/ap001656/00218553/ap020074/02a00070_1.1.gif?jstor
(accessed 10 October 2007).