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

2

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

   
   

3

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.

4

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).

5

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

6

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

7

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

8

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

9

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

10

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

   
   

11

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.

   
   

12

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.

13

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

14

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

15

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

16

"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

17

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

18

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

19

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

20

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

21

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

22

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.

23

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

24

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

25

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

26

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

27

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

28

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

29

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