COURSE: ADVANCED CONSTITUTIONAL LAW (LAW 7415)

Submitted in partial fulfilment of LLM (Masters in Human Rights Law)

Seminar presentation No. 1

Task:

“the political question, the doctrine of separation of powers in Lesotho”

Submitted by: Katiso Eric Nhlapho

Student Number: 200300433

Contact details: (+266) 58075298/ (+266) 63781706

Course Instructor: Proffesor A. Nwafor

Email address: nhlapokern@gmail.com

Postgraduate Studies

Faculty of Law

National University of Lesotho

  Abstract

Lesotho is one of those independent countries and having gained its independence, it adopted its
own Constitution in 1993 as the supreme law of the country. Amongst other things that the
constitution had to deal with was to separate the powers in the government and lay out the duties
of each institution.

This presentation seeks to interrogate the doctrine of separation of powers in Lesotho and how, if
in any way, has the doctrine of political question affected such doctrine. With the use of the
academics, case law and the constitution, the presentation shall critically analyse the doctrine of
separation of powers in Lesotho. This presentation is focused more on whether there are those
issues that are discussed and determined within their respective branches and should not be the
subject of the judicial review.

The political approach of this presentation is that, whether there exists separation of powers and
whether there are issues that are non justiciable since they fall squarely within the jurisdiction of
other branches.

It is further the content that in dealing with the doctrine of separation of powers, the doctrine of
checks and balances and judicial review are a necessary ancillary that should be included herein

At the end of this presentation, it shall be concluded as to whether there is in fact the doctrine of
separation of powers, visa vie the doctrine of political question.

 Introduction

This presentation interrogates the 3 branches of the Lesotho government and their duties as
enshrined in the constitution of Lesotho and critically analyse the scope of their duties and where
they overlap, if ever they do. A typical example would be that the King of Lesotho, King Letsie
the III is the Head of the State, the one that elects the Chief Justice and the President of the Court
of Appeal of Lesotho, part of the Executive and the Senate as he is the King of Lesotho and that
raises a notable concern at this stage of the doctrine of separation of powers.
It is notable the present view in line with the ruling in Law Society of Lesotho v Ramodibeli NO
& Ors 1 where Maqutu J. commented on the issue of separation of powers and said:
“After all the doctrine of separation of powers is not quite a British constitutional doctrine. It
is really a constitutional analysis of the British constitution as Baron de Montesquieu saw it
in The Spirit of the Laws. His objective was to influence French constitutional thinking which
tolerated despotism. He wanted power not to be concentrated in the hands of the same
person – so that there could be checks and balances.”
IM Rautenbach2 describes Separation of powers as “….specific functions, duties and
responsibilities are allocated to distinctive institutions with a defined means of competence and
jurisdiction. It is a separation of three main spheres of government, namely, Legislative,
Executive and Judiciary. Within the constitutional framework the meaning of the terms
legislative, executive and judicial authority are of importance: (a) Legislative authority – Is the
power to make, amend and repeal rules of law. (b) Executive authority – Is the power to execute
and enforce rules of law. (c) Judicial authority – Is the power; if there is a dispute, to determine
what the law is and how it should be applied in the disputes”
On the other hand, Nwafor3 describes Separation of powers as “ the idea that the powers of a
sovereign government should be split between two or more strongly independent entities,
preventing any one person or group from gaining too much power. In democratic systems of
governance based on the trias politica, three branches of government (legislative, executive,
judicial) exist largely independent of each other, with their own prerogatives, domains of
activity, and exercises of control over each other”
One can undoubtedly concur with the 2 definitions of separation of powers and submits further
that in a democratic country, there is definitely a required significance of dividing the
government branches and their powers to safeguard a proper governance and centralization of
powers lest such leads to abuse of such power. The country should state clearly the branches of
the government and their duties to further avoid overlapping into the powers of other branches.
Such should definitely be done through the constitution of the same country to further safeguard
its guarantees on the doctrine. Such exercise is called separation of powers.

1
[2003] LSHC 89 (15 August 2003) Maqutu J.A., at paras 8–9.
2
IM Rautenbach Constitutional Law 4 ed (2003) at p 78
3
Nwafor A.O, “The Lesotho Constitution and Doctrine of Separation of Powers:Reflections on the Judicial
Attitude”(2013) 6African Journal of Legal Studies 51.
On the other hand, for fragile recognition of the doctrine of separation of powers, the Lesotho
constitution does not notably advance clearly in the constitution that such shall be respected;
taking into account the fact that the Constitution states that it shall be the supreme law of the
country, one would account that lack of mention that Lesotho shall take into account the doctrine
of separation of powers and respect it clearly denotes shortage in the Law.

While it is argued that the doctrine of separation of powers is amongst others, the most crucial
part of governance, and the fact that Lesotho had adopted and still uses the Westminster model,
which amongst others, recognises the doctrine of separation of powers, lack of clear inclusion
leaves room for broad interpretation towards the doctrine.

This presentation shall further dwell into in to the doctrine of separation of powers in Lesotho
and division of the branches in brief details going forward

 Doctrine of Separation of Powers

This concept originated from the English philosopher John Locke, around the 17th century who
thought of all men, by nature, should be free, equal, and independent. The doctrine was coined
by the 18th century philosopher Montesquieu.
Lesotho on the other hand, has theoretically managed to safeguard the doctrine of separation of
powers through its constitution as depicted in the constitution where the three branches of the
government are provided for with the intention that they do not overlap.
Lesotho is a sovereign democratic country that adopted its constitution in 1993 and as such in the
same constitution has provided for the establishment of the different branches of government
under different Chapters. The legislature is depicted under Chapter VI, The executive is under
Chapter VIII whilst the judiciary appears under chapter XI.

In as much as the constitution has tried to establish different branches of the government with the
goal to establish the doctrine of separation of powers, such is not practically visible and possible.
The non adherence of the doctrine shall be discussed as the presentation goes further.

The 3 branches of the government are therefore discussed in brief in the following:

The Legislature:4
4
Chapter VI of the Constitution of Lesotho of 1993
The legislative power of Lesotho is vested in parliament.5 However, the constitution still leaves
rooms for delegation of legislative powers in the making of other rules, by-laws and regulations
as may be required. It should be clear that the inherent powers of legislation are with the
Parliament.

It is worth realization, the provisions of Section 546 that establishes the Parliament that consists
of the King, a Senate and a National Assembly. This means that the King of Lesotho is part of
the Legislature

The executive:7
The executive power is vested in the King and he exercises such powers through officers or
authorities of the government of Lesotho.8
The Judiciary:9
The judiciary is established from section 118 of the constitution
Critical Analysis
On the face of it, it is clear that the objectives of the doctrine of separation of powers is far from
being met. The King of Lesotho is part of the Senate and the National Assembly10 and executive
authority of Lesotho is vested in the King.11 The King further appoints the Prime Minister12 the
king is further vested with the powers to prorogate the Parliament13
Going to the issues of the judiciary, that is clearly established and vested with the powers in the
constitution14 with the judicial powers, one would argue that such powers include trying and
sentencing criminals. However, section 101 of the Constitution provides for prorogation of
mercy by the King. This means that any convicted criminal may apply for mercy in terms of that
section and the King may pardon him. This deviates from the true intention of separation of
powers whereof the judiciary would have done its work, sentenced a criminal and then can still
go free if the provisions of Section 101 are invoked properly. This exercise has opened a flood

5
Constitution of Lesotho 1993, Section 70.
6
Constitution of Lesotho 1993
7
Chapter VIII of the Constitution of Lesotho
8
Section 86 of the Constitution of Lesotho
9
Chapter XI of the Constitution of Lesotho
10
Section 54 of the Constitution of Lesotho
11
Section 86 of the Constitution of Lesotho
12
Section 87 of the Constitution of Lesotho
13
Section 101 of the Constitution of Lesotho
14
Section 118 of the Constitution of Lesotho
gates for non recognition of the separation of powers especially with regard to the judiciary
where citizen even go to Court to even demand the King to exercise His Constitutional powers to
pardon them, contrary to the Court decisions. In the case of Jersey Ramakatane v The Director
of Public Prosecutions15 where Jersey had applied to court for the Kings’ Pardon. This is a
constitutional provision and notably so, the other co-accuseds Ford Sekamane and Thabiso
Mahase, had been granted such pardon as per his averments and felt it wise to demand such
pardon from the courts of law.

 The Political Question

The term “Political question” is defined in the Legal Information institution 16 as a subject matter
that the Supreme Court deems to be inappropriate for judicial review because discretionary
power over it should be left to the politically accountable branches of government (i.e., the
President and Congress). Thus, the courts will leave constitutional questions on such matters to
be resolved in the political process. Courts will usually find a matter to be a political question on
one of two grounds: (1) the constitutional concern for separation of powers, where the
Constitution has already committed the matter on other nonjudicial branches of government for
decision making; and (2) prudential concerns which lead the Court to choose to refrain from
adjudicating the matter.

The political question doctrine was first enunciated in Marbury by the United States Supreme
Court when it held that the principle of the separation of powers makes certain questions non-
justiciable because adjudicating those questions would intrude on the powers of the political
branches of government.17 MO Mohango on the other hand holds the view that “The political
question doctrine is a function of the principle of the separation of powers, and it provides that
there are certain questions of constitutional law that are constitutionally committed to the elected
branches of government for resolution”18

15
Civ/Apn/205/2013
16
https://www.law.cornell.edu/wex/political_question ([Last updated in March of 2022 by the Wex Definitions
Team] )
17
Marbury v Madison 5 US (1 Cranch) 137 (1803) 170 (hereafter Marbury).
18
MO Mhango. Separation of powers in Ghana. PER / PELJ 2014(17)6
Different courts in different countries have developed several justiciability canons that restrain
when courts may adjudicate disputes, such as standing, mootness, ripeness, and the prevention of
advisory opinions. These justiciability canons emanate from constitutional considerations such as
respect for separation of powers and the proper role and scope of judicial review in a
constitutional democracy, which is of course, the focus of this presentation which is another
justiciability canon - the political question doctrine. This doctrine arises from the principle of
separation of powers and, in the main, provides that certain questions of constitutional law are
allocated to the discretion of the elected branches of government for resolution. As a result, such
questions are non-justiciable and require the judiciary to abstain from deciding them because not
doing so intrudes into the functions of the elected branches of government. The underlying
theme is that such questions must find resolution in the political process.

 The Doctrine of Checks and Balances

Checks and balances; principle of government under which separate branches are empowered
to prevent actions by other branches and are induced to share power.19

Justice Makara in Fako Johson Likoti v Prime Minister & Ors20 remarked:

“Hitherto, it does not appear that Parliament dedicatedly studies regulations presented before it
and critiques them accordingly before accepting them to become law. The expectation is that
Parliament would equally censure regulation based policies which are pertinently ultra vires the
law without necessarily usurping the powers of the Judiciary and not just act as a rubber stamp.
It is sad that parliamentarians in this case, benefited from a tellingly unfair regulatory based
discriminative policy which violates the rights of other citizens and attenuates a prima facie
created opportunity for the unjust enrichment for parliamentarians.”

The ruling in the Fako Likoti is a clear indication of the doctrine of checks and balances in
Lesotho; however, this meets a hiccup in the fact that if the matter is not brought before court,
the Executive can freely abuse its powers without the worry of the checks and balances. In the
same Fako Case, Justice Makara further remarked that the doctrine of checks and balances
should not only be left with the judiciary to implement and contented that they also need
19
Britannica, The Editors of Encyclopaedia. "checks and balances". Encyclopedia Britannica, 24 Jul. 2023,
https://www.britannica.com/topic/checks-and-balances. Accessed 10 April 2024.
20
CC 16/2018
reinforcement and reciprocity from Parliament21 it therefore can be submitted that they doctrine
although existent in theorem, practicability would seem impossible and perhaps the rethinking
that should allow the courts to institute checks and balances mero muto.

 The Doctrine of Judicial Review

Judicial review is defined as22 power of the courts of a country to examine the actions of the
legislative, executive, and administrative arms of the government and to determine whether such
actions are consistent with the constitution.

The doctrine of judicial review is a complex one, given that countries follow either of the 2
modes to wit, the Westminster model and then there is the American Family. Lesotho, just like
any other countries, follows the Westminster approach which in essence, oblige to the principles
of such in the doctrine of judicial review. In the Westminster model, the courts can only review
the parliament only with regard the powers conferred to the Parliament is exercised and when the
parliament goes beyond the boundaries, then the doctrine of ultra vires steps in.

One can safely submit that the doctrine of judicial review in Lesotho is a product of common
law, and such actually exists. This is witnessed in the legal doctrine of mandamus which is
normally instituted against other branches of the government. Looking back in the cases of
Khaketla v Honourable Prime Minister,23 the court, agreeable with the doctrine of
parliamentary sovereignty, declined to nullify the law. Notably so, the decision was made in
1985 and the constitution was still suspended. However, it could be submitted that the doctrine
of judicial review is a product of the court precedent in Tsang v Minister of Foreign Affairs24
the court of Appeal noted and perhaps opened the doors for judicial review which was later on
adopted in litigations.

Arguably so, the doctrine is enshrined in the Constitution as attested under section 119 (1) and
was adopted in the case of The Speaker of the National Assembly & Ors v Likeleli

21
@ page 50 Paragraph 98
22
Tate, C. Neal. "judicial review". Encyclopedia Britannica, 19 Dec. 2023,
https://www.britannica.com/topic/judicial-review. Accessed 10 April 2024.
23
(CIV/APN/145/85) [1985] LSCA 118 (24 July 1985)
24
1993-94 LLR-LB 45 (HC)
Tampane25 In his writing, Hoolo ‘Nyane26 submits that ´ The constitution of Lesotho of 1993 has
a supremacy clause which ordinarily empowers the judiciary to review the actions and
proceedings of other branches of the government.´

One interesting case is the recent decision in Lejone Puseletso v The Speaker of The National
Assembly & Ors27 where the court was called in to intervene the determine the constitutionality
of a constitutional amendment. This issue is left for further discussion in the conclusion of this
presentation.

One can argue as above, that there is no clear demarcation in the Constitution that gives the
Courts of law the power to review the parliament. As if that is not enough, the constitution itself
limits the judiciary in exercise of the judicial review. The provisions of section 80 (5) of the
Constitution are a clear indication of the non inherent judicial review powers as it states that a
certificate given by the Speaker of the National Assembly shall not be questionable by the courts
of law.

 Conclusion

As stipulated in the abstract that at the end of this presentation it shall be concluded as to whether
there is in fact the doctrine of separation of powers, visa vie the doctrine of political question.

Having regard to the observations made herein above, it is apparent as per this presentation that
the political question does in essence affect the doctrine of separation of powers. Courts are
granted their powers to exercise their review powers, however, taking into consideration the
provisions of section 80 of the constitution, it goes without saying that the constitution makes
matters worse by providing that some decisions are non justiciable while on the other hand, the
doctrine of checks and balances allows for the court and other branches of the government to
check on each other.

The doctrine of the political question cannot be concluded to adversely affect the doctrine of
separation of powers since they both, it should be submitted, that they advocate for the same
involvement, put differently, the separation of powers theorem determine that the judiciary stays
25
CIV/APN/13/2018
26
‘Nyane H "Judicial Review of the Legislative Process in Lesotho: Lessons from South Africa" PER / PELJ
2019(22) - DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5713
27
[2023] LSHC 10. Const. (16 February 2024)
in its lane, and so does the other branches of the government, while the political question
determine further that, although not all of them, but some decisions shall not be questioned in the
courts of law but are purely to be determined in their respective branches.

Be that as it may, the view is that this theorem is conflicting and needs serious revisit. The
doctrine of checks and balances goes together with that of judicial review and such are ancillary
to separation of power. If this theorem is adopted holistically, the country runs a risk of going
back to the parliamentary sovereignty, which in the submission, is the exact opposed of the
democratic country.

Going back to the case of Lejone Puseletso v The Speaker of the National Assembly &
others28 where the court was to determine on the Constitutionality of the amendment to the
constitution, the Court held that such amendment is unconstitutional. Briefly, the background is
that the matter was instituted when the vote of no confidence was passed against the present
Prime Minister and the Parliamentarians were using the amendment to the constitution to invoke
such vote. Given that this has been the law and operational, it was only declared unconstitutional
when the current Prime Minister was about to be voted out. The contention was that such acts of
the parliamentarians were the acts of another branch of the government and thereof non
justiciable. The High Court decided otherwise.

The contention is that Justice Moahloli, in his judgment merged the theorem of political question
in judicial review. The present presentation holds the view that since the passing of the vote of
no confidence was done inside the Parliament, and the Parliamentarians executing their
constitutional duties, the judiciary could not extend their powers into the other branch of the
government as the doctrine of separation of powers dictate. Making laws, and amendments and
all other duties are provided for in the constitution as for the Legislature, which in this instance
they had even already past the same laws when the Former Prime Minister Tom Thabane had to
step out of governance since that law was invoked, cautious of the Legislature abusing its powers
in line with the doctrine of ultra vires, the present contention is that the Legislature was still in
line with their constitutional duties and the Court erred in declaring the constitutional
amendment unconstitutional. The present contention is not that the judiciary should not have the
powers to declare laws unconstitutional; however, the timing in this matter depicts a different
28
[2023] LSHC 10. Const. (16 February 2024)
picture. Any unconstitutional law should immediately be declared unconstitutional the moment it
comes into operation and should not wait for at least 2 years or more when the said laws is being
invoked against a certain politician.

The presentation has proven that due to the theorem of checks and balances, and judicial review,
the doctrine of separation of powers cannot clearly exist together with the counterpart, the
doctrine of political question. While the doctrine of political question seem to be the pillar of
separation of powers, judicial review and checks and balances overlap into the theorem, leaving
a need to reconsider the application of those doctrines.