CIV/APN/135/2005

IN THE HIGH COURT OF LESOTHO

In the matter between:

MOLEFI TSEPE Applicant

And

THE INDEPENDENT ELECTORAL COMMISSION 1st Respondent

THE RETURNING OFFICER LITJOTJELA N0.1405 2nd Respondent ELECTORAL DIVISION

THE MINISTER FOR JUSTICE HUMAN RIGHTS 3rd Respondent

AND CONSTITUTIONAL AFFAIRS

THE MINISTER OF LOCAL GOVERNMENT 4th Respondent

THE ATTORNEY GENERAL 5th Respondent

JUDGMENT

CORAM: HONOURABLE JUSTICE K.J. GUNI

HONOURABLE JUSTICE S.N. PEETE

HONOURABLE JUSTICE T. NOMNGCONGO

APRIL 27, 2005

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NOMNGCONGO J.

The Applicant approaches Court urgently in terms of Rule 12 (1) of the Constitutional Litigation Rules. The circumstances that he says justify urgency are stated in his affidavit as "The closing date for nominations is to-day the Ist April 2005". He goes on "It is imperative that since the matter affects the continuation of the election it should be determined urgently with the least interference with the election time table " and finally " though I am desirous of being elected I would hate to approach Court and get an order after the election leading to a waste of public funds, if the elections are declared a nullity. "

He seeks the following orders

1. Dispensing with the rules relating to the forms and service of process owing to urgency.

2. Declaring unconstitutional the provisions of Section 26 (1) A (a) and (b) to the extent that they authorize the exclusion of the Applicant from participating as a candidate in ELECTORAL DIVISION LITJOTJELA 05 on the basis of his sex in contravention of Section 18 (1) (2) and (3) of the Lesotho Constitution;

3. Declaring the exclusion of the Applicant from participation as a candidate at Electoral Division LITJOTJELA 05 TSIKOANE HA MOKOKOANA to be unconstitutional as it violates Applicant's rights enshrined in Section 20 (1) of the Lesotho Constitution.

4. Directing the second Respondent to accept the nomination of the Applicant as a candidate at the local authority elections in the Electoral

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Division Litjotjela Tsikoane Ha Mokokoana upon satisfaction of other qualification requirements other than his gender as a male.

5. Directing Respondents to pay costs of this application.

6. Granting Applicant such further and /or alternative relief as the Court may see fit.

The Respondents oppose this application and answering affidavits have been filed on behalf of First and Fourth Respondents. The Law Society of Lesotho sought to intervene as amicus curiae. To do that they had to have a written consent from all the parties in the matter (Rule 10(1) of the Constitutional Litigation) or to apply to Court to obtain it if for same reason they failed to secure it (Rule 10 (4)). They did not have the written consent of any of the parties in the matter. The Applicant simply indicated that they had no objection to the intervention - which did not amount to a written consent and the Respondents' Counsel categorically indicated that he would oppose such intervention. What they then had to do, which they didn't do was to apply to Court on notice of motion duly accompanied by an affidavit in support thereof (Rule 11 (1) (b)). What they did was to file what they termed " Request for the Parties' Written Consent to be Admitted as Amicus Curiae Rule 10 (1) Constitutional Litigation Rules 200." That did not amount to an application as contemplated in the Rules. We accordingly refused to admit the Law Society as Amicus curiae.

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In their heads of arguments, the Respondents raised for the first time a point in limine

that there had been a non-joinder of the other candidates for election to the Councils as well as the political parties involved who would be affected by the relief sought by the Applicant and by the result which it would cause were it to be granted. In their answering affidavit this objection was never made, the Respondents choosing rather to immediately join issue on the main Constitutional points raised in the application. Having done so they cannot now demand the joinder of parties. (Herbstein and Van Winsen - The Civil Practice of the Supreme Court of South Africa 4th Ed. p.187 and cases cited therein) In any event in the view that we take of the main Constitutional issue raised it is unnecessary to resolve this point taken in limine. We shall immediately proceed to the main issue.

The background to the matter starts with the enactment of the Local Government Act N0.6 of 1997 to make provision for the establishment of various Local Authorities styled Community, Rural, Urban or Municipal Councils. These were to be divided into areas by declaration by the Minister responsible for Local

Government. For electoral purposes the Councils were to be divided into divisions in which candidates would stand for election to the relevant local authority. (See Sections 3,4,6,8 and 10 of the Act).

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The Local Government Elections Act was passed in 1968 to facilitate the process of elections to the local authorities under the Independent Electoral Commission. (IEC) which the First Respondent herein (Section 3 of the Local Government Election Act 1968) This Act was to be amended in July 2004 by Act NO. 6 of 2004. Section 26 thereof was amended as follows:

"Eligibility and nomination of candidates. 26 (1) Subject to subsections (1A) and (2) and subsection (1) of section 5, every person is eligible for election as a member of a Council and may be nominated and elected as a candidate for election in the electoral division delineated by the Independent Electoral Commission under Section 8.

1 (A) In accordance with the Local Government Act 1997, one third of the seats in each Council shall be [re] served for women as follows:

1. for the first local authority elections, one third of the seats reserved for women shall be from every third electoral division in the Council.

2. for subsequent local authority elections, one third of the total electoral divisions shall be reserved by rotation, but such rotation shall not exceed two terms of office.

1. No person referred to in subsection (1) shall be eligible for election as a member of a Council and to be nominated as a candidate for election, if he or she is disqualified in respect of the disqualifications set out in the Third Schedule."

The areas for the various local authorities having been declared and names having

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been assigned to them by LEGAL NOTICE NO. 202/2005 the IEC according to the Respondents called a meeting with delegates of all political parties. In the meeting it was decided that the various divisions reserved for women would, in terms of Section 26 1 (A) of the Act 6 of 2004, be randomly allocated as follows: Since an area is divided into several consecutively numbered divisions, a delegate agreed upon would pick a number at random. From that number a count to three would be made and the number arrived at would then be reserved for women. It is this very randomness that commended itself to the protagonists of this model of achieving the purposes of the act.

The Applicant resides in the area of the Community Council of Litjotjela. It has eleven electoral divisions. He actually lives in one of these divisions, Litjotjela N0.1405. He is a qualified voter and is constitutionally qualified in all respects to be nominated and stand for election in his home division. Alas ! He cannot do so. Using the method just described and in terms of Act N06 of 2004, this division is one of three out of eleven that has been reserved for women. He takes an umbrage. He says Act N0.6 of 2004, Section 26 (1) A (a) & (b) is unconstitutional as it discriminates against him on the grounds of gender or sex in violation of the Constitution of Lesotho Sections 18 and 20 thereof. He is asking us to strike it

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down in terms of Section 2 of the Constitution which provides:

"This Constitution is the supreme law of Lesotho and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency be void."

The Respondent does not dispute the discriminatory nature of the law under attack, he concedes it but says it is reasonably justifiable in a democratic society and therefore not unconsttutional.

Before proceeding we have to clear some equivocation that is presented by the applicant's papers with regard to prayer 2 and the rest of his affidavits. The prayer seems to seek the striking down of the act in toto on the grounds of alleged discrimination yet his affidavits leave no doubt that the Applicant has no quarrel with reserving one third of the electoral divisions for women. He makes this perfectly clear at par. 17 of his replying affidavit as follows.

"We do not challenge the object but the manner the legislature seeks to achieve it"

This after he has gone so far as to present his own model for achieving the object of the act which he claims would least affect the right that the claims has been violated. The Applicant therefore cannot at once acclaim and then disclaim by seeking the

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wholesale nullification of the act even to the extent that it provides for the acclaimed

objective. Once the Applicant has placed himself in this position of accepting preferential treatment for women he is estopped from further arguing that he being discriminated against because whatever method is adopted it will necessarily give advantage to women over men. This was neatly expressed by LORD BINGHAM OF CORNILL in BISHOP OF ROMAN CATHOLIC DIOCESE OF PORT LOUIS AND OTHERS V TENGUR AND OTHERS (2004) UKPC 9 at 16 (h)

"The giving of preference to one group of Applicants necessarily works to the disadvantage of any group of Applicants to whom preference is not given"

In this view that we take it seems that the Applicant and the Respondents are ad idem that Constitutional right of the Applicant has been infringed but that it was done for a reasonably justifiable objective in a democratic society. The admission by the Applicant that it is desirable to reserve one third of seats for women can only mean that.

What only remains as I have indicated as Applicant's main bone of contention is the means adopted to achieve that end.

Before we address his aspect we consider that we must specifically express ourselves

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on the constitutional issues that we were addressed on at some length and which we

feel are important.

Chapter II of the Constitution provides for the protection of fundamental Human Rights and Freedoms as follows:

Fundamental human rights and freedoms.

4. (1) Whereas 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 fundamental human rights and freedoms, that is to say, to each and all of the following –

1. ...........................

14. freedom from discrimination

16. the right to participate in government

the provisions of this Chapter shall 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 being limitations 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.

Section 4 of the Constitution confers rights to every person in Lesotho in a general sense and ideal sense as Mr Teele for the Applicant correctly argued. As it does so it also provides for a general limitation to those rights, that if their enjoyment entails

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prejudice to others and to the public interest, they may have to be curtailed.

The ideals enshrined in section 4 of the Constitution - what are usually called the Chapter II rights - are given concrete expression elsewhere in the Constitution. Thus the right to freedom from discrimination is concretized in Section 18 and the right to participate in government in Section 20. They provides as follows respectively:

Freedom from Discrimination

18.(1) Subject to the provisions of subsection (4) and 5 no law shall make any provision that is discriminatory either of itself or in its effect.

2. Subject to the provisions of subsection (6) no person shall be treated in discriminatory manner by acting by virtue of any written law, or in the performance of the functions of any public office or any public authority.

3. In this section the expression "discriminatory" means affording different to different persons attributable wholly or mainly to their respective description by race, colour sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of such other description.

4. Subsection (1) shall not apply to any law to the extent that, that law makes provision –

1. with respect to persons who are not citizens of Lesotho; or

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2. for the application, in the case of persons of any such description as is mentioned in subsection (3) (or of persons connected with such persons) of the law with respect to adoption, marriage, divorce, burial, devotion, devolution of property or death or other like matters which is the personal law of persons of that description; or

3. for the application of the customary law of Lesotho with respect to any matter in the case of persons who, under that law are subject to that law; or

4. for the appropriation of public revenues or other public funds; or

5. whereby persons of any such description as is mentioned in subsection (3) may be made subject to any disability or restriction or may be accorded any privilege or advantage which having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.

Nothing in this subsection shall prevent the making of laws in pursuance of the principle of State Policy of promoting a society based on equality and Justice for all the citizens of Lesotho and thereby removing any discriminatory laws".

The right to participate in Government crystalizes as follows: "Right to participate in government 20 (1) Every citizen of Lesotho shall enjoy the right

1. to take part in the conduct of public affairs, directly or through freely chosen representatives;

2. to vote and stand for election at periodic elections under this Constitution under a system of universal suffrage and equal suffrage and secret ballot;

3. to have access on general terms of equality, to the public service.

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2. The right referred to in subsection (1) shall be subject to the other provisions of this Constitution."

Thus the general prohibition against discrimination found in section 18(1) is circumscribed by section 18(4) (e) to the extent that a law subjects a person to a disability or restriction or accords a privilege or advantage regard being had to the nature and special circumstance of those persons, which is "reasonable justifiable in a democratic society". We see no such specific limitation to the right to participate in government in section. However that right too is as we have seen subject to the " other provisions of the Constitution (section 20 (2)). Such is the nature of rights encapsulated in any bill of rights that they are not absolute. Professor de Devenish in" a Commentary on the South African Bill of Rights (Butterworths 1999) p.541 says in this regard:

"This reflects a general perception in the domestic law of most states, in international law, and international and other human rights documents that only a limited number of rights, if any, are absolute "

As it confers rights on its citizenry the Constitution also imposes duties on the state to ensure that the rights are given meaning. Section 26 provides as follows.

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Equality and Justice

26 1. Lesotho shall adopt policies aimed at promoting a society based on equality and justice for all its citizens regardless of race, colour,sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. In particular, the state shall take appropriate measures n order to promote equality of opportunity for the disadvantaged groups in the society to enable them to participate fully in all aspects of public."

The state therefore has to take positive steps to eradicate instances of inequality of

opportunity.

Moseneke J. was,with respect,speaking to our Constitution in the South African

Constitutional Court in MINISTER OF FINANCE AND ANOTHER V. VAN

HEERDEN 2004 (6) SA 121 (cc) when he remarked:

" What is clear is that our Constitution.........reads as a whole, embraces for goad reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalized under privilege, the constitutional promise of equality before the law and its protection, must in the context of our country, ring hollow "

Lesotho is a signatory to several international conventions. These conventions also

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impose certain duties on the state. The Convention on the Elimination of All Forms of Discrimination Against women provides for instance at Article 3.

" State Parties shall take in all fields, in particular in the political social, economic and cultural fields, all appropriate measures, including legislation to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise of human rights and fundamental freedoms on a basis of equality with men ".

And significantly Article 4 goes on to provide.

"Adoption by state Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equal opportunity and treatment have been achieved"

The 1997 SADC Declaration on Gender and Development provides for

"Ensuring the equal representation of women and men in the decision-making of member states and SADC structures at all levels, and the achievement of at least thirty percent of women in political and decision making structures by

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year 2005"

In interpreting the constitution our courts have adopted a combination of a progressive and textualist approach. Thus it has been held that a constitutional interpretation must be:

"broadly purpose, involving the recognition of constitutional values and not a search to find the literal meaning of statutes ". This however, remains an exercise to be undertaken within limits. We quoted in this regard with approval the judgment of Kentridge A.J. (Speaking for a unanimous court) in S v. Zuma 1995 (2) SA 642 CC:

" We must heed Lord Wilber force's reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination ". Per Gauntlett J.A. in Attorney General of Lesotho v 'Mopa 2002 (6) BCLR 645 at 650 G . H.

It was held again in Matinkuica v Council of State, Ciskei 1994 (1) BCLR 17 at

25 referring to an article by Kruger "Positivism: The old Warhorse Lives On" – that

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"The Constitution must not be read in isolation but within the context of the fundamental humanistic philosophy. In that regard the preamble (if any) and the manifold structures of the constitution could be indicative of such a humanistic philosophy.

The value judgment must be objectively articulated and identified. In the process of such objective identification regard must be had to contemporary norms, aspirations, expectations and sensitivities of the population as expressed in, inter alia the constitution. Furthermore (and still in the process of such objective articulation) values emerging from the 'civilized international community' should be taken cognizance of' per Claasens and Heath JJ.

It is further a principle of interpretation of a constitution that it must as far as possible

accommodate international conventions to which the state is party, unless the contrary

is clear from the language of Constitution. Thus it was held in Bishop of Roman Catholic Diocese of Port Louis and Others v Tengur and Others (supra) at P.32 "It is, the Board recognized in Matadeen v. Pontu 1988 3 LRC 542 at 557, a well recognized canon of construction that domestic legislation, including the constitution, should if possible be construed so as to

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conform to international instruments to which the state is party" per Lord Bingham of Cornhill.

A purposive approach to our constitution it seems to us must recognize that it establishes and promotes equality amongst its citizen to the extent that other citizens may be subjected to disabilities and restrictions in pursuit of that goal, (section 18 (4) (e))The state is required to take active measures to redress inequality of historically disadvantaged groups in order that they may take their equal place in all spheres of public life.(section 26) In the same spirit The Convention on the Elimination of All Forms of Discrimination Against Women places an activist duty on state parties to promote the lot of women and goes further to say that measure that might at first blush appear discriminatory should not be so regarded if they are intended to promote the equality of women to men provided such measures are only temporary and aimed to achieve that objective only. The SADC Declaration on Gender and Development actually sets a target of at least thirty percent representation of women in the political and decision making structures by the year 2005. Guantlett J.A.

I would conclude in the circumstances, like Gauntlett J.A. in Attorney General of

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Lesotho v 'Mopa (supra) that in providing for the limitation of rights in the process

of, or in the interests of promoting others, the Constitution of Lesotho is not idiosyncratic. (At 655B).

Now it is 9 x 10 matic that historically Basotho women in the political decision­making structures of Lesotho. In the spirit of the constitution this imbalance had to be redressed. In doing so the legislature enacted the Local Government Election Act No.6 of 2004, section 26 of which admittedly infringes on the applicants rights. The Court of Appeal of Lesotho laid down the proper approach in such a case as follows; "The constitution does not provide (as some instruments do) expressly for the jurisdiction of an infringement of a chapter 2 right but it is apparent from the scheme of the constitution that a limitation of a right is authorized where, in accordance with the broad text articulated by Dickson CJC in the Canadian Supreme Court in the well known matter of R v Qakes 1986 26 DLR (4th) 200 SCC at 226 -7, the limitation of the right is reasonable and "demonstrably justified in a free and democratic society".

The first aspect relates to the objective or purpose of a limitation, and the second to the aspect of proportionality. The objective must be sufficiently substantial and important so as to warrant overriding a constitutionally protected right, while the

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proportionality test requires that the means chosen to limit the rights are appropriate. Dickson CJC said in the latter respect.

" There are in my view, three important components of the proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question they must not be arbitrary, unfair or based on national considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair 'as little as possible' the right or freedom in question: R v Big M Drug Mart Limited (1985) 18 DLR (4th) 321 at 352. Thirdly there must be proportionality between the effects of the measures which are responsible for limiting the charter right or freedom, and the objective which has been identified as' of sufficient importance ". The onus of proving that a limitation is justified rests upon the person averring it. Per Gauntlett J.A. in Attorney General of Lesotho v 'Mope (supra) at 654 H to 655A-D.

That the objective of the limitation is sufficiently substantial and important is now

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common cause and it cannot now be open to doubt. Now, were the means chosen to limit the rights appropriate and has the respondent discharged the onus that rests on him in that regard.?

The means chosen by the Legislature are simple enough. Every third electoral division in a Council is reserved for women. This process will rotate for the next two terms of office. The IEC simply adopted this model and put a small practical refinement on it to enable it to determine at which point to start counting to three. This was achieved by asking a member of a political party to choose by lot any number from the number of electoral divisions in a Council and counting would start from the chosen member. Thus if two were picked out of a hat so to speak, counting would start at two and the fourth electoral division would be reserved for women.

The respondent presented his own model for achieving a one third representation of women in the local authorities. I do not propose to try and set it out here, for one reason that I found it hard to comprehend and the other more important one that it would have the same effect as the one presented by the Legislature and the IEC and yet be much more complicated to affect implements

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It was urged on us by Mr Teele in discharging the onus that rests on the respondents

they had to satisfy us that in presenting the electoral model that they choose to carry into effect its stated objective, they had considered others and found that the one presented was the least violative of applicant's rights. That exercise in my view would be a futile one for there can be as many models as the human imagination can spawn and debate to chose one from the other could be endless further this would be to postulate that the men and women who considered these weighty matter are somehow prone to capriciousness and arbitrariness. We are not entitled to do that. On the contrary we are entitled to assume that they are reasonable men and women who would consider as many alternatives as possible and come with one that they consider most reasonable. After all they are our elected officials in whom we have entrusted onerous and grave responsibilities. All that the respondents are required to do so is to present whatever model and they will have discharged their onus if they satisfy us that it reasonably justified in a free and democratic society regard being had to inter alia the principles laid out in R v. Oakes as to proportionality.

The objective is accelerating the advancement of historically disadvantaged women is achieved by ensuring their immediate one third representation where other methods have been shown to be totally inadequate over the years. The method chosen to do

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so commends itself by being disarmingly simple as indicated above. The respondents

have indicated that it does not completely shut out the applicant in that he is still eligible to stand as a candidate in other electoral division, other than the one which happened to fall in the seats reserved for women. As this arrangement is a rotating he will be affected only once in his own electoral division which he seems to think holds the best prospects for him. Surely this is the least that the applicant can do for a cause that also by his own admission holds clear. In any case the measure is only temporary. Two more elections and it is over. That is not a very long time in the life of a nation.

Taking all these considerations into account we have come to the conclusion that the limitation that the Section 26 (1) A (a) &(b) imposes on the applicant's rights in so far as it does is reasonably justifiable in a free and democratic society. They therefore riot unconstitutional.

That the rights conferred on the applicant by Section 20 (1) of the Lesotho constitution are subject to the other provisions of the constitution regarding equality and therefore Section 26(1) A (a) and (b) does not unconstitutionally violate those

rights.

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The application is dismissed.

We have considered the question of costs and come to the conclusion that in line with other constitutional matters where litigants Have approached court with sufficiently important and controversial issues and have approached the court in good faith they should not be deferred by an adverse order of costs. This matter raised an important issue touching on Chapter II rights of the citizen. We make no order as to costs.

JUSTICE T.NOMNGCONGO

I concur

JUSTICE K.J. GUNI

Peete J.

1. I concur fully with the judgment of my Brother Nomngcongo J. and its reasoning. I wish however to add that it behoves us all to recognize and accept that in the Lesotho of to-day under its democratic Constitution, men and women are equal citizens and are entitled to the equal protection of the law. It is however an undisputable fact and truth that women in our society have for long stood disadvantaged and marginalized socially, economically and, I dare

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say, even politically. Though free to exercise as Lesotho citizens their right to vote and perhaps due to some personal, social and cultural stereotypes or taboos, women do not generally actively take "part in the conduct of public affairs " as candidates standing to be elected as representatives in the decision­making institutions both at national and local levels.

Lesotho has a positive constitutional obligation under Section 26 (2) of the Constitution of Lesotho to take measures - such as enactment of laws or adoption of policies - intended to promote a society based on equality and justice for all citizens regardless of their sex; such laws must positively promote equality of opportunity where none exist or is inadequate, for the disadvantaged groups in society "to enable them to participate fully in all spheres of public life".

3. Lesotho is also signatory to the Universal Declaration of Human Rights, Convention on the Elimination of Forms of Discrimination Against Women (1981), Protocol to the African Charter on Human and Peoples' Rights on the Women in Africa (2003), 1997 SADC Declaration on Gender and Development. For its part the Judiciary of Lesotho, as an important

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branch of State, has to bear in mind all these International Protocols when interpreting the domestic legislation: Judges have a crucial role to ensure equality of both sexes in order to guarantee human dignity and social and political justice in our society.

4. Interpretation of Section 18 (4) (e) of the Constitution must therefore be purposively done. What is "reasonably justifiable in a democratic society" depends upon the democratic values and interests aspired to by the Basotho. For example, does an ordinary and reasonably informed Mosotho accept that women have equal rights as men with to be elected into the decision-making institutions? Should there be some affirmative (positive) action/measures taken to create special opportunities for women in the election process? Can such measures be implemented without prejudicing (or rendering nugatory) the interests of other citizens? What are the lofty egalitarian ideals enshrined in the Principles of State policy in the Constitution?

5. If women constitute a majority (51%+) of the Basotho public - as it has been alleged in the papers and if that be a correct percentage - it is indeed most unfair and undemocratic if their representation in Parliament stands only at

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14% of the 120 seats! This surely has to be remedied; and the equilibrium of this ratio can only be achieved positively though measures whose effect must necessarily prejudice other people's fundamental rights. An imbalance cannot be corrected without disturbing the status quo]

6. Under the Constitution of Lesotho every Mosotho of eighteen years and above (male and female) can vote or stand for elections anywhere in Lesotho. Whether the discriminatory or preferential treatment brought about by Section 26 of the Act as amended has been shown to be reasonably and justified in a democratic society is a principally "a value judgment" that has to be made on the basis of our society's norms. At the end of the day, the Courts therefore have to balance the protection of fundamental rights of individuals against the general interests of the community. Individualized rights and social stability needed in any democratic society may indeed be in contention and often the court has to choose between these competing values and make sophisticated judgment as to their relative weights.

7. In the case of S. v Manamela - 2000 (3) SA 1 (C.C.) Paras 32 & 66 it was held by the Constitutional Court of South Africa that freedom does not mean total

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freedom. In a democratic society, freedom can never be absolute. It must be exercised with due regard to the legitimate interests of other members of society and the countervailing claims of other constitutional values e.g. socio-economic and others. These countervailing claims of democracy demand that the regulatory role of government in a democratic society be recognized -Ferreira v Levin -1996 (1) SA 984 at para 183,250; Sv Lawrence 1997(4) 1176 CC at para44.

8. All organs of state have a constitutional obligation all undesirable to dismantle patterns of past discrimination. It is not the function of the Government alone. The judiciary, for its part, must actively interpret the relevant constitutional and statutory provisions in this light; and in determining what is reasonable and justifiable in an open and democratic society, the court must engage in a balancing exercise and arrive at a global value-judgment on the proportionality of interests; the question is principally one of degree to be assessed in the concrete legislative and social setting of the measure without losing sight of the ultimate value to be protected i.e. equality for all.

9. In the new Millennium there is a pressing social need for positive measures to

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correct the imbalances and marginalization in our society and in this case, we should genuinely ask ourselves whether the legislature has "overreached" itself in responding to these matters of great social and national concern. Failure on the part of Government to take measures to correct the gender imbalance would in my view amount to breach of a constitutional duty and of treaty obligations. These measures could have easily been taken by the individual political parties contesting the national and local elections; but nay, they are under no obligation to do so. Their party policies or constitutions are their own indaba.

10. In the to-day's world, there are as many electoral models as there are the peoples - some of these models are simple and some very complex and Mr Teele, for the applicant, submitted an ingenious model which, in the applicant's view, would have been the lease invasive to his right under Section 20 of the Constitution.

11. That may be so, and indeed there may be many other models which electoral scientists might come up with; it all comes down to a "choice" by the majority in the elected fora as to which model may be suitable. This court cannot -without encroaching on such matters of policy - come to a selective decision

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that this model is less intrusive than the other mode].

12. Standing on its own Section 26 of the Act as amended is admittedly discriminatory and regard being had to the current gender imbalances and marginalization in our society and to the constitutional and international obligations of Lesotho to take appropriate measures to promote equality of opportunity for the disadvantaged, I am of the view that the affected right to "stand for election under system of universal and equal suffrage" is an basically an "individualized" right which must be delicately balanced against the issue of the general gender imbalance in our society and the court must arrive at a "global (holistic) judgment on proportionality and not adhere mechanically to a consequential check - list" - S v Manamela (supra).

The fact that the applicant's right to stand as an independent candidate has not been rendered wholly nugatory, demonstrates that the impairment of his right is minimal. That he may gather less votes when standing as candidate in a division other than his home division is an obvious inconvenience necessarily precipitated by the random selection of his home division as "female".

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13. Proportionality principle calls for an objective balancing of different interests e.g. nature of the right that is being limited; its importance to an open and democratic society based on freedom and equality; the purpose for which the right is being limited and the utilitarian importance of that purpose to society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question - S v Makwanyane -1995 (3) SA 391 (CC).

JUSTICE

S.N. PEETE

FOR APPLICANT : ADV. TEELE

FOR RESPONDENTS : H.P. VILJOEN SC