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UPDATE: The Law and Legal Research in Lesotho
 
By Tebello Thabane
 
Tebello Thabane holds a B.A (Law), LL.B from the National University of Lesotho and an LLM in Human Rights and Democratisation in Africa from the Centre for Human Rights (University of Pretoria). Tebello is an academic at the University of KwaZulu Natal, Durban, South Africa. 
 
Published June 2012
(Previously updated by Buhle Angelo Dube on November/December 2010)
See the Archive Version!
 
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
Children’s rights
Protection of Disability Rights
Freedom of assembly, association and expression
Chapter III – Principles of State Policy
Chapter IV – Citizenship
Chapter V – The Office of the King
Chapter VIThe Legislature
Chapter VIIThe 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 a landlocked country 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 government is a constitutional monarchy 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 (2011), Lesotho ranks number 160 out of 187 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. Elections were held in 1960 and the then Basutoland Congress Party (BCP) won 32 or the 40 seats, however, most of the appointed members voted for the Basutoland National Party (BNP), effectively giving the BNP majority.[[1] ] Following the election, King Moshoeshoe II (then paramount chief) appointed a commission to draft a constitution that would usher in independence. The commission reported in 1963 and recommended a Westminster-style constitution with a two-chamber parliament. To the dismay of the King, his position was to be a mere figurehead under the independence constitution. The constitution also provided for a prime minister, who would be the leader of the majority party, and exercise executive power as the head of government. [[2]]

 

The next election was held in 1965, a year before independence and it was won by the BNP taking 31 seats to the BCP's 25. Thus, BNP was the ruling party when the Kingdom gained its independence on 4 October 1966. In the 1970 elections, BNP lost to BCP for the first time. The BCP won 35 seats to the BNP's 23 and the Marematlou Freedom Party’s (MFP) 1. The BNP did not accept defeat, suspended the constitution and declared a state of emergency. [[3] ] The BNP’s move introduced a culture of non-acceptance of election results in the Kingdom and the country has since then been plagued by instability. The BNP cling on to power for almost 15 years with its rule characterized by brute force to induce compliance. The 1970 coup d’etat was the first of many in the Kingdom. The BCP was then forced to retreat and form the Lesotho Liberation Army (LLA) to try ousting the BNP. The LLA staged attacks in strategic parts of the country but these proved insignificant.  The BNP was eventually toppled by the army in a second coup of 1986 led by Major General Metsing Lekhanya, who in turn was displaced by his junior officers within the army in 1990.[[4]]

 

On 28 June 1990, the National Constituent Assembly was established and tasked with drafting a new constitution. The Assembly resolved to use the 1966 Constitution as a framework for the new Constitution. On 16 March 1993, the Lesotho Constitution Commencement Order (Commencement Order) was published and the new Constitution came into force on 2 April 1993. The new Constitution did not make sweeping amendments to the existing governmental set up. It provided for the continuation in office of the person holding the office of King, as provided for under the Office of King Order of 1990.

 

In 1996, Queen Mamohato took over as Regent when the then King Moshoeshoe II died. She held on to power until the College of Chiefs appointed the current King (son to the late King Moshoeshoe II, and then Crown Prince Mohato Bereng Seeiso). He took the throne with a formal coronation on 31 October 1997 as King Letsie III. 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. There has been a marked departure from authoritarian rule since 1993; however, the country has experienced serious post-election conflicts with 1998 standing out as one of the darkest years in the history of Lesotho.

 

Today a constitutional monarch, Lesotho once endured 23 years of undemocratic government (including 7 years of military rule. It also survived three coups d’etat in 1970, 1986 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. [[5]] The civil society report on the implementation of the APRM recommendations in Lesotho shows that there has been some progress but the APRM recommendations have not been streamlined into the country’s planning processes.[[6]]

 

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 in 1993. 
 

The Legislature

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. 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 have by virtue of section 70(2) of the Constitution validly delegated its legislative powers. These include government gazettes, ministerial orders, ministerial regulations, and municipal byelaws.

 

Precedent

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

 

Common Law

Common law, which generally refers to unwritten non-statutory law and excludes customary law, was introduced to Lesotho through General Law Proclamation 2B of 1884. This Proclamation provided that the law to be administered in Basutoland (Lesotho) shall, as nearly as the circumstances will permit, be the same as the law for the time being in force in the Colony of the Cape of Good Hope (now Western Cape, South Africa). [[7]] The effect of this Proclamation was to create a dual legal system made up of the common law (the received law) and the indigenous customary law. The common law that was applicable in the Cape of Good Hope at the time was a mixture of the Roman-Dutch Civilian law and the English Common Law. Because of this Proclamation, Lesotho’s common law is essentially the same as that of South Africa.

 

Authoritative Texts

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

 

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 courts were initially steadfast in refusing to apply undomesticated international instruments.[[8]]In Joe Molefi v Government of Lesotho, the court adopted a strict approach to dualism where it demanded that ratified international instruments be incorporated into the domestic law before it could regard their provisions enforceable.[[9]] In Basotho National Party and Another v Government of Lesotho and Others, the applicants, inter alia, sought an order directing the Government of Lesotho to take the necessary steps, in accordance with its constitutional processes to adopt such legislative and other measures necessary to give effect to the rights recognised in international conventions such as the African Charter on Human and Peoples’ Rights. The Court explicitly stated, “these Conventions cannot form part of our law until and unless they are incorporated into municipal law by legislative enactment.”[[10]] However, in interpreting the right to legal representation in DPP v Sole and another,[[11]] the court made reference to several international human rights instruments including article 7(1) of the African Charter.[[12]] Later, in the celebrated case of Molefi Ts’epe v The Independent Electoral Commission and Others the highest court in the land confirmed the emerging paradigm shift by referring to several ratified but undomesticated instruments including the African Charter, CEDAW, the SADC Declaration on Gender and Equality, and the International Covenant on Civil and Political Rights (ICCPR). The court specifically referred to article 18(4) of the African Charter despite the fact that the Charter is not domesticated. In an unprecedented move, the court also referred to but did not apply the Women Protocol, which Lesotho had already ratified at that stage but had not yet come into force due to the fact that there were inadequate ratifications.[[13]]

 

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

As stated earlier, Lesotho has a dual legal system consisting of customary and general laws operating side by side. Customary law is made up of the customs of the Basotho, written and codified mainly in the Laws of Lerotholi whereas general law consists of Roman Dutch Law imported from the Cape and the Lesotho statutes. The codification of customary law came about after a council was appointed in 1903 to advise the British Resident Commissioner on what was best for the Basotho in terms of laws that would govern them. Until this time, the Basotho customs and laws were passed down from generation to generation-through oral tradition. The council was then given the task of codifying them, came up with the Laws of Lerotholi, which are applied, by customary courts today (local courts). These Laws of Lerotholi are divided into three parts; however, they remain an incomplete declaration of Sesotho law and custom. Other sources of customary law include Sotho Laws and Customs, [[14]] Land Tenure in Basutoland, [[15]], and Mekhoa le Maele a Basotho. [[16]]

 

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 or artificial persons as well as private citizens. Thus, the Bill of Rights seems to be both vertically and horizontally enforceable.

 

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

 

Protection of Right to Life

Lesotho is signatory to international instruments, which provide for sanctity of life. However, it still retains the death penalty. This is because international instruments like the International Covenant on Civil and Political Rights, which Lesotho is party to, still recognise state parties’ right to impose the death penalty pursuant to a final order delivered by a competent court. [[17]]  It is only the Second Optional Protocol to the ICCPR that prohibits the death penalty, however, Lesotho is not party to it. Whilst section 5 of the Constitution 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 in 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)). The death penalty may be imposed for murder and treason in terms of section 297 of the Criminal Procedure and Evidence Act. Section 32 (a) (vii) of the Sexual Offences Act provides for the death penalty in respect of an accused person convicted of rape, who knowingly commits the crime knowing that or having reasonable suspicion to believe that he is infected with HIV.[[18]] The death penalty cannot, however, be carried out in respect of a person below 18 years of age or a pregnant woman in terms of section 297 (b) and 299 of the Criminal Procedure and Evidence Act respectively.[[19]] Thus, these provisions indicate a retentionist stance towards the death penalty.[[20]] It must be noted that the death penalty can only be imposed where the court finds that there are no extenuating circumstances.[[21]] These circumstances include youth, liquor, emotional conflict, the nature of motive, provocation, sub-normal intelligence, general background, impulsiveness, a lesser part in the commission of the murder, the absence of dolus directus, belief in witchcraft, absence of premeditation or planning, “heavy confrontation” between the accused and the deceased before the murder, and the rage of the accused.[[22]] This broad range of extenuating circumstances coupled with increasing human rights consciousness among judges are arguably the main reasons why the death penalty has not been imposed since 1996[[23]] and where it has been ordered by the High Court, the Court of Appeal has found some extenuating circumstances and thus commuted it to imprisonment. For example, in Phumo v Rex[[24]] the Court of Appeal commuted the death sentence to seven years’ imprisonment; in Rex v Sosolo[[25]] the Court of Appeal commuted the death sentence to 15 years, while in Sekhobe Letsie and Another v Rex,[[26]] the death sentence was commuted to life in respect of the second accused. It would seem the death penalty remains on the statute books of Lesotho 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. [[27]] It is important to note that Section 18 of the Constitution prohibits discrimination but subsection (4) provides that section 18 shall not apply to customary law or personal law, that is, law on marriage, divorce, burial, devolution of property on death, adoption and so on. This was, however, changed when the Legal Capacity of Married Persons Act was enacted.[[28]] This Act essentially eliminates de jure discrimination against women under personal and some customary laws. It also repeals the marital power that a husband had over the person and property of his wife and confers equal powers on both spouses married in community of property. It gives couples and individuals the right to freely decide the number, spacing and timing of their children thus giving effect to the Women Protocol.[[29]] Regrettably, the Act has not changed customary inheritance and succession.

 

Subsequent to the passing of the Act, other statutory laws that were discriminatory against women were amended. These include the Companies Act of 1967, which was amended in 2008 to enable women to become promoters or directors of companies without having to seek their husbands’ consent.[[30]] The new Land Act of 2010 recognises the right of married spouses to own land jointly irrespective of whether their marriage is a civil one or under customary law. This is an important development because women could not hold title to land under customary law as well as under civil law because the Land Registry Act of 1967, which is now amended by the new Land Act prohibited married women from holding title to land.

 

Section 30 of the Lesotho Constitution is of particular relevance to women. The Constitution exhibits traits of affirmative action for women only in the Principles of State Policy, which in terms of section 25 are not justiciable. In section 30(a) (i), it calls for equal remuneration for work of equal value for both men and women. It also calls for the creation of equal opportunities of employment for men and women (section 30(c)). Lesotho enacted the Local Government Amendment Act, which requires 30 per cent of local council seats to be reserved for women representatives. The net effect of this has been an improved representation and participatio0n of women in the political sphere.[[31]] In Molefi Ts’epe v The Independent Electoral Commission and Others the appellant challenged the constitutionality of this law that reserved one third of local government seats for women on the basis that it was discriminatory but the highest court did not agree with his assertion holding that the law was constitutional and in line with Lesotho’s international and regional obligations.[[32]]

Although the Married Person’s Equality Act 2006 was a milestone in the protection of women’s rights in Lesotho, there are still areas that need attention. For instance, section 44 of the Constitution establishes the office of King and makes no provision for a female to hold that office as head of state in her own right except as a regent. Section 10(2) of the Chieftaincy Act 1968 provides that only a male child may succeed to the office of chief. Currently, there is a constitutional case before the High Court where a female is seeking an order declaring the Chieftainship Act unconstitutional on the grounds that it deprives her of the right to succeed her father on the chieftainship of ’Mamathe on the basis that she is a woman.[[33]]

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 because it would be part of the highest law of the land and any customary practice or law inconsistent with it would be unconstitutional to the extent of the inconsistency. However, its success if introduced would only come about provided there is accompanying political will to implement it.  

 

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. Parliament recently passed the Children’s Protection and Welfare Act 2011, which essentially domesticates the Convention on the Rights of the Child (CRC) and institutionalizes the United Nations Principles on children’s rights.

 

 

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. [[34]] The omission of disability rights in the justiciable provisions of the Constitution is worrisome. However, Lesotho, in a progressive move, became the 42nd country to ratify the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) on December 2, 2008. This instrument is the first legally binding international instrument in the realm of disability rights. It, inter alia, protects the right to access education; health care; public transportation services; the right to vote and participate in public and cultural life; and the right to live in the community with one’s family rather than an institution.[[35]] 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. What is left is for the country to ensure that the policy is converted into legislation and that the ideals of the CRPD are domesticated.

 

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 others, unless with that individual’s consent this right has been limited. The constitution guarantees the individual’s freedom to associate freely with other persons for ideological, religious, political, economic, labour, social, cultural, recreational and similar purposes.

 

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

 

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

 

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)[[36]] guarantees the full range of rights, civil, political, economic, social and cultural for both PWDs and non-PWDs.[[37]] Between 1948 and the 1960s when the International Covenant on Civil and Political Rights (ICCPR)[[38]] and International Covenant on Economic Social and Cultural Rights (CESCR)[[39]] 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.[[40]] 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. [[41]] 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).[[42]]

 

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.[[43]] 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.[[44]]

 

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.[[45]] 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. [[46]]

 

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)). The fact that Lesotho is geographically in the belly of South Africa makes the issue of citizenship rather complex.  A huge number of Basotho work and study in South Africa and have married South Africans. In Director of Immigration v Adam Pholoana Lekhoaba, the respondent was a citizen of Lesotho by birth. His parents took him to South Africa at an early age; he lived in that country for almost all of his life. In 1987, at the age of seventeen he acquired citizenship of South Africa. In interpreting the Constitution and the Citizenship Order 1972, the Court of Appeal held that the Respondent ought to have denounced his South African citizenship when the Lesotho Constitution came into effect and the fact that he did not do so resulted in him losing his Lesotho citizenship. The court went further to observe that in its view, parliament should give urgent consideration to the desirability of enacting legislation to permit citizens of Lesotho who acquire citizenship of South Africa to hold dual citizenship in appropriate circumstances.[[47]] The court’s advice is hitherto unheeded. 

 

Chapter V - The Office of the King

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

 

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

 

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

 

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

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

 

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

 

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 also calls for the appointment of a Prime Minister, from the National Assembly. The appointee shall be the leader of a majority party in the National Assembly (section 87(2)). The Constitution also calls for the establishment of other government ministries, which shall not be less than seven in number, and one of which shall be the office of the Deputy Prime Minister. Ministers are appointed by the King on the advice of the Prime Minister. The candidates are sought from 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)). In practise, the Council of State is not very active.

 

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 establish by legislation.

 

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 advice of the Prime Minister (section 124(1)). Section 121(8) of the Constitution provides that judges of the High Court may retire any time after attaining the age of 75.

 

Recently, Lesotho passed the Administration of the Judiciary Act, 2011 that essentially confers both administrative and financial autonomy on the judiciary and establishes the Judicial Service. According to the Chief Justice, ‘this piece of legislation gives practical effect to section 118(3) of the Constitution which provides that the Government shall accord such assistance as the courts may require to enable them to protect their independence, dignity and effectiveness, subject to this Constitution and any other law.’[[48]]

 

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.

 

It is worth noting that Lesotho had a serious dearth of legal expertise at independence but since then, many lawyers were trained and have taken over all the subordinate courts and the High Court. By 1995, the High Court was entirely staffed by locals. Inexplicably, the Court of Appeal is still made up of white South African judges (mostly retired and legal practitioners) who sometimes struggle with cases concerning customary law.[[49]] There is only one Mosotho judge in the Court of Appeal and he is the president of that court. It is unclear why Lesotho is, 40 years post-independence, still holding on to this independence arrangement of resourcing judges from South Africa when it now has local expertise. It is also unclear why it only uses the services of white South African judges when the bench of that country is now very diverse.

 

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

 

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. The country has now introduced the small claims court in a bid to improve access to justice for indigent citizens.  There is emphasis on simple procedure, which ensures speed, simplicity, efficiency, fairness, and economy of expense. For example, there are no lawyers involved and filling fees are reduced to half of the normal court fees. [[50]]

 

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. It hears appeal cases from the Directorate of Dispute Prevention and Resolution (DDPR) which is ‘a semi-autonomous labour tribunal, established in terms of section 46B of the Lesotho Labour Code (Amendment) Act, 2000 (the Act). It is independent of the government, political parties, trade unions, employers and employers’ organizations and its main functions are to attempt to prevent trade (labour) disputes from arising or escalating; resolve trade disputes through conciliation and arbitration; advise employers, employers’ organizations, employees and trade unions on the prevention and resolution of trade disputes; and to compile and publish information about of its activities, statistics on dispute prevention and resolution and significant arbitration awards.’[[51]] The Labour Court’s decisions can be appealed to the Labour Appeal Court.

 

Customary Courts

At the bottom of Lesotho’s court structures are the Local and Central Courts, which are primarily customary courts. A relic of colonial times, these courts were created by the British to deal specifically with issues of that part of the population distinct from the Europeans that is the Basotho. The Local Courts were established by the Local Courts Proclamation. They have jurisdiction on matters falling under customary law, and can only handle matters involving members of the Basotho nation. Lawyers have always represented clients before these courts; however, government issued a directive in 2004 to the effect that lawyers should no longer be allowed to appear in the local courts. This directive was successfully challenged by the law society in Law Society of Lesotho v Right Honourable Prime Minister Pakalitha Mosisili and Others[[52]]where the court held that the directive was contrary to section 12 (2) (d) of the Constitution and section 20 of the Local and Central Courts Proclamation 62 of 1938 (as amended). These courts have an interesting history, as recounted by WCM Maqutu. [[53]]

 

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 could 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)).[[54]] 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. [[55]]

 

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), [[56]] 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

It seems the long awaited human rights commission will soon start operating. Plans to operationilise it are seemingly at an advanced stage. The Constitution has already been amended and the process is now awaiting enabling legislation. Civil society is also receiving training on the role and functions of the commission.[[57]] 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. They thus serve a double function; (i) to make public the decisions of the courts, and (ii) to facilitate the effective functioning of the general law of any country. Hence, the need to publish law reports and make them easily accessible to the public and legal practitioners. Lesotho has a law report series known as the Lesotho Law Reports (LLR) and Lesotho Appeal Cases (LAC). According to Sanders, the publication of law reports started as an initiative of Sir Harold Willian in 1953. Sir Willian was a Commissioner for Territories in Southern Africa, namely Basutoland, Bechuanaland and Swaziland and he was Chief Justice in each of these territories.[[58]] Initially the law reports were published as High Commission Territories Law Reports (HCTLR) by the High Court, Maseru in Basutoland. In 1966 Basutoland and Bechuanaland gained independence as Lesotho and Botswana respectively. The HCTLR ceased to exist, and each country began publishing its own reports.

 

Cases from South Africa have persuasive value in the courts of Lesotho. South African Law Reports are used to a large extent. South African courts also refer to Lesotho cases, albeit to a very limited extend.[[59]]

 

Today Lesotho law reports can be easily accessible online through the SAFLII website as well as the Lesotho Legal Information Institute 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 used to offer a two-tier six-year programme, consisting of the Bachelor of Arts in Law degree (taken over four years) coupled with the two-year Bachelor of Laws degree. The University has now introduced a five-year LLB programme. Also offered is a three-year LL.B programme for graduates holding a B.A. (Law) or equivalent degree, or graduates from faculties other than law. In 2000/2001 the Faculty began offering a two-year Master of Laws (LL.M) programme which combines course work and research for holders of the LL.B degree.[[60]]

 

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. Lately, there is also the Lesotho Information Institute website; however, it also has only a few Acts uploaded.

 

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

 

The government website is regrettably not well maintained and has little or no information for legal research.[[61]]

 

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 ministries 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. In Mosuoe v Law Society of Lesotho, the appellant, a citizen of Lesotho, had obtained an LLB degree from the University of Fort Hare, in South Africa. He had also completed his articles and sat and passed the attorneys’ admission examinations set by the Cape Law Society. In the light of these qualifications, he contended that he should, without more, be entitled to be admitted and enrolled as an attorney in Lesotho, and that to the extent that provisions of the Legal Practitioners Act, 11 of 1983 stood in the way, compliance with those had to be waived by the court. The law society opposed his admission and requested that he write Lesotho’s attorneys examinations as required by the Act. The court agreed with the law society holding that the requirements of the Act were mandatory and could not be waived.[[62]]

 

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

Lesotho Network of AIDS Service Organizations (LENASO)

Lesotho Network of People Living with HIV and AIDS

Lesotho Red Cross Society (LRCS)

Christian Council of Lesotho

Transformation Resource Centre

 

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

Institute for Security studies

South African Institute of International Affairs

Directorate of Dispute Prevention and Resolution

Electoral Institute for Sustainable Democracy in Africa

 



[[1]] Lesotho history and politics: Constitution and political system. Available http://www.iss.co.za/af/profiles/Lesotho/Politics.html (accessed 15 April 2012).

[[2]] 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.

[[3]] See Mokotso & 2 Ors v His Majesty Moshoeshoe II & 2 Ors 1985-90 LLR 604

[[4]] Lesotho history and politics: Constitution and political system. Available http://www.iss.co.za/af/profiles/Lesotho/Politics.html

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

[[6]] Yarik Turianskyi, Implementing the APRM: Views from Civil Society - The Lesotho Report (2011) available at http://www.saiia.org.za/images/stories/research/aprm/aprm_lesotho_amp_report_sept_2011.pdf (accessed 10 May 2012).

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

[[8]] See generally, Thabane and Shale, ‘The influence of regional human rights law on Lesotho’s domestic legislation and jurisprudence: a critical reflection’ (forthcoming).

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

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

[[11]] [2001] LSHC 101 (unreported.)

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

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

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

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

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

[[17]] See Article 3 of the ICCPR.

[[18]] Act No. 3 of 2003

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

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

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

[[22]] Ibid.

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

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

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

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

[[27]] 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.

[[28]] Act no 9 of 2006.

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

[[30]] See Lesotho National report submitted to the UN Human Rights Council in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1, A/HRC/WG.6/8/LSO/1, available at http://www.upr-info.org/IMG/pdf/A_HRC_WG-6_8_LSO_1.pdf (accessed 10 May 2011).

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

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

[[33]] Lepoqo Masupha v Sempe Masupha CIV/A/24/2011 (ongoing at the time of writing this update).

[[34]] See section 26 Lesotho Constitution.

[[35]] Lesotho Ratifies Disability Rights Treaty, available at http://ratifynow.org/2008/12/08/lesotho-ratifies-disability-rights-treaty/ (accessed 10 May 2012).

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

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

[[38]] Entered into force 23 March 1976.

[[39]] Entered into force 3 January 1976.

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

[[41]] Sepúlveda n13, 119.

[[42]] As above.

[[43]] As above.

[[44]]  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.

[[45]] Sepúlveda n13 above, 120.

[[46]] 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.

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

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

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

[[50]] See Judiciary Reforms – Small Claims Court, available at http://www.lesotholii.org/content/judiciary-reforms-small-claims-courts (accessed 10 April 2012).

[[51]] See Directorate of Dispute Prevention and Resolution (DDPR) available at http://www.labour.gov.ls/about/ddpr.php (accessed 15 April 2012)

[[52]] Law Society of Lesotho v Right Honourable Prime Minister Pakalitha Mosisili and Others (Constitutional Case No. 2/04)  available at http://www.lesotholii.org/ls/judgment/high-court/2004/82 (accessed 15 May 2012).

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

[[54]] On the effectiveness of the Ombudsman, see generally Kapa, MA (2009) Promoting the Effectiveness of Democracy Protection Institutions in Southern Africa: The Office of the Ombudsman in Lesotho, EISA Research report No 39, available at http://www.eisa.org.za/PDF/rr39.pdf (accessed 5 May 2012).

[[56]] As above.

[[57]] See ‘Human Rights Commission on the cards’ available at http://www.informativenews.co.ls (accessed 10 May 2012).

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

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

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