CRI\T\36\94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

and

EVARISTUS
RETSELISITSOE SEKHONYANA Accused

JUDGMENT

Delivered
by the Honourable Chief Justice J.L. Kheola on the 18th day of
October. 1994.

The
accused is charged with the offence of contravening section 4 (1) (b)
as read with section 3 (1) (i), (ii), (iii) and (iv) of
the Sedition
Proclamation No.44 of 1938.

In that
upon or about 13th day of November, 1993, and at or near
'Manthabiseng Bus Stop, in the district of Maseru, the said accused

did unlawfully and intentionally contravene section 4 (1) (b) as read
with section 3 (1) (i), (ii), (iii) and (iv) of the Sedition

Proclamation, No.44 of 1938, in that he uttered seditious words which
were intended and\or calculated either:

2

1. to
   bring into hatred or contempt or to excite disaffection against the
   Government of Lesotho as by law established, and\or

   
   

2. to
   excite His Majesty's subjects or inhabitants of Lesotho to at tempt
   to procure the alteration, other than by lawful means the
   lawful
   established Government of the country; and\or

   
   

3. to
   bring into hatred or contempt or to excite disaffection against the
   administration of justice in Lesotho; and\or

   
   

4. to
   raise discontent or disaffection amongst His Majesty's subjects or
   inhabitants of Lesotho;

   
   

when he
(the accused) uttered certain words in a speech which he delivered at
'Mantnabiseng Bus Stop as aforesaid, and thus did
contravene section
4 (1) (b) of the Sedition Proclamation.

Section 3
(1) and (2) read as follows:

1. A
   "seditious intention" is an intention -

   
   

(i) to bring into hatred or contempt or to excite disaffection
against the person of Her Majesty, Her heirs or successors, or the

Government of the Territory as by law established; or

(ii) to excite Her Majesty's subjects or inhabitants of the Territory
Co attempt to procure the alteration, otherwise than by lawful
means,
or any matter in the Territory as by law

3

established;
or

(iii) Co bring into hatred or contempt or to excite disaffection
against the administration of justice in the Territory; or

(iv) to raise discontent amongst Her Majesty's subjects or
inhabitants of the Territory; or

(v) to promote feelings of ill-will and hostility between different
classes of the population of the Territory.

2. In
   determining whether the intention with which any act was done, any
   words were spoken, or any document was published, was or
   was not
   seditious, every person shall be deemed to intend the consequences
   which would naturally follow from his conduct at the
   time and under
   the circumstances in which he so conducted himself.

   
   

Section 4
(1) reads as follows:

"Any person who -

(a) does or attempts to do, or makes any preparation to do, or
conspires with any person to do, any act with a seditious intention;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale; distributes or
reproduces any seditious publication;

(d) imports any seditious publication, unless he has no reason to
believe that it is seditious.

shall be guilty of an offence and liable on conviction for a first
offence to imprisonment for two years or Co a fine not exceeding
two

4

hundred rands or to both such imprisonment and fine, and for a
subsequent offence to imprisonment for three years and any seditious

publication shall be forfeited to the Crown.

One of
the issues that were argued before the Court was whether in the light
of the coming into operation of the Sedition Proclamation
No.44 of
1938 (the Proclamation; the common law offence of sedition continued
to exist. In other words, did the legislature intend
to amend the
common law in such a way that the common law of fence of sedition was
abolished?

It seems
to me that it will not be necessary for me to make a decision on that
point. The Proclamation clearly defines a seditious
intention and
from that definition one can easily establish what "seditious
words" are. In any case if it becomes necessary
Co define
"sedition" the Court can resort to the English dictionaries
as well as to the common law definition of "sedition".

At the
beginning of the trial the Defence Counsel Mr. Kuny. S.C. made
certain formal admissions. Re admitted on behalf of the accused
that
the speech which is annexed to the indictment was made by the

5

accused
at a rally at 'Manthabiseng Bus Stop in the district of Maseru on the
13th day of November, 1993. The rally was attended
by the members of
the B.N.P. and members of other parties as well as the general
public. The admission related to both the English
version and Sesotho
version of the speech.

After the
formal admissions were made the Crown closed its case.

Mr. Kuny
applied for the discharge of the accused on the ground that the Crown
had failed to establish a prima facie case against
the accused. He
submitted that the Proclamation is a very old piece of legislation
which has not taken into account the new changes
that have taken
place since 1938. One of such changes is the fact that to-day we have
a constitution which protects fundamental
human rights and freedoms.
The section of the constitution which deals with these fundamental
human rights and freedoms is entrenthed.
He submitted that the
constitution is the supreme law of the country and that any law that
is inconsistent with the provisions
of the constitution must be
struck down. He submitted that the Proclamation is inconsistent with
section 14 of the constitution
of

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Lesotho.

He
submitted that the speech forming the subject matter of the charge
was made by a politician. He conceded that it was forthright
and hard
hitting. However it was not seditious because what the accused did
was to criticize the Government and he genuinely believed
that he was
exercising his fundamental right of freedom of expression which is
protected by the constitution. In order to establish
the intention of
the accused one must look at the entire speech and not take certain
parts of it in isolation.

Section
14 of the constitution reads as follows:

1. Every
   person shall be entitled to, and (except with his own consent) shall
   not be hindered in his enjoyment of, freedom of expression,

   including freedom to hold opinions without interference, freedom to
   receive ideas and information without interference, freedom
   to
   communicate ideas and information without interference (whether the
   communication be to the public generally or to any person
   or class
   of persons) and freedom from interference with

   
   

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his correspondence.

2. Nothing
   contained in or done under the authority of any law shall be held to
   be inconsistent with or in contravention of this
   section to the
   extent that the law in question makes provision -

   
   

1. in
   the interests of defence, public safety, public order, public
   morality or public health; or

   
   

2. For
   the purpose of protecting the reputations, rights and freedoms of
   other persons or the private lives of persons concerned
   in legal
   proceedings, preventing the disclosure of information received in
   confidence, maintaining the authority and independence
   of the
   courts, or regulating the technical administration or the technical
   operation of telephony, telegraph, posts wireless
   broadcasting or
   television; or

   
   

3. for
   the purpose of imposing restrictions upon public officers.

   
   

Section
14 must be read with section 156 (1) of

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the
constitution which reads as follows:

"Subject to the provisions of this Constitution, the existing
laws shall continue in force and effect on and after the coming
into
operation of this Constitution and shall then have effect as if they
had been made in pursuance of this Constitution, but
they shall be
construed with such modification, adaptations, qualifications and
exceptions as may be necessary to bring them into
conformity with
this Constitution."

Mr.
Mdhluli. the Director of Public Prosecutions, submitted that the
Proclamation is not inconsistent with the Constitution of Lesotho.
Re
submitted that certain parts of the speech made by the accused were
made with seditious intention.

He
referred to the case of Chipembere v. Reginam 1961-63 (2) The African
Law Reports (Malawi) 83 at pp. 88-89 where Clayden, F.C.
J. said:

"The crime, which is set out in s. 57 (l)(b) of the Penal Code
(cap. 23), of uttering seditious words has to be considered
with s.56
which deals with what is "a seditious intention" and how it
is proved. To be guilty under s.57 a person has
to have an intention
to be seditious in one or other of the senses set out in s.56(l). But
by virtue of s.56(2) that intention
may be

9

proved by
the Crown in a particular way. The sub-section provides:

"In determining whether the intention with which.... any words
were spoken ... was or was not seditious, every person shall
be
deemed to intend the consequences which would naturally follow from
his conduct at the time and under the circumstances which
he so
conducted himself.

A sub-section corresponding to sub-s.(2) was considered by this court
in Buchanan v. R. (1), in which it was held (1957 R. &N.
at 527)
that "the word 'deemed' was not.meant to allow artificial
intention to shut out actual intention" and that the
sub-section
allowed of "the consideration of evidence outside the
publication itself in deciding whether or not there was
seditious
intention."

The decision of this court on a matter of law has Co be made on the
following basis. The words charged were said; the circumstances
in
which they were said found; explanations given by the appellant as to
the particular sense in which he used some words were
disbelieved and
general evidence by the appellant that he did not in the use of the
words, or some of them, have actual seditious
intention, was
disbelieved. This court cannot go behind any of those findings of
fact."

The
statute with which the Court was dealing seems to have been
materially similar to the Proclamation in the present case. The

decision of that Court is not binding on this Court but only
persuasive.

10

The Court
considered the application for the discharge of the accused and came
to the conclusion that there was a prima facie case
for the accused
to answer. The accused went into the witness box and gave his
explanation, and the circumstances under which he
made the speech. He
testified that he is the leader of the B.N.P. During his political
career he held various ministerial posts
in the previous Government
of Lesotho. The B.N.P. lost the general elections in 1993. The B.C.P.
won all the seats in Parliament.
There is practically no opposition
in Parliament. However following a by-election there is now one
member of Parliament who is
not a member of B.C.P. As a result of
this abnormal situation The B.N.P. exercises its right of opposition
from outside Parliament
through political rallies and publications.

The rally
held on the 13th November, 1993 was for the purpose of criticizing
the Government for what the accused calls a purifying
system, i.e. a
system under which career civil servants were being replaced by
B.C.P. members. He had no seditious intention when
he criticized the
Government for what was actually happening.

11

Regarding
the judges of the High Court the accused says that there was a rumour
in Maseru that Judges were to be appointed on party
lines and that
B.C.P. supporters were to be appointed. He was therefore warning the
Government not to tamper with the Courts because
that is where their
trust lay.

The
accused was convinced that the Lesotho Liberation Army (L.L.A.) was
being trained in the Republic of South Africa. Some of the
members of
L.L.A. who had already been trained were coming back into Lesotho and
were being directed to a company known as Security
Lesotho to be
employed as security guards. The intention of the Government was to
replace the existing armed forces with L.L.A.
He was warning the
Government that it was a dangerous thing to replace the existing
armed forces and the civil service with something
new.

The
senior members of the armed forces are members of the Council of
State. He was appealing to the Council of State to do something

lawful and stop the L.L.A. from infiltrating the armed forces. He
never had any seditious intention or subversive intention but
merely
advised the Government through

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legitimate
criticism in the exercise of his freedom of expression which is
entrenthed by the Constitution.

The
defence of the accused as a whole was that the speech he made does
not reveal a seditious intention. It is a speech made by
a politician
who was exercising his right of freedom of speech. He has a right to
criticize the Government in the manner he did,
more especially
because he is not in parliament where be could exercise his right to
criticize Government as a leader of a party.

I shall
now quote at length some parts of the speech made by the accused and
then analyze them in order to establish the meaning
of the speech and
the intention of the accused.

From page
17 to page 21 the speech reads as follows:

"I am grateful that you are not the ones who initiated this
matters which I am talking about. The right of every man is to

protect himself and to protect his children. The right of every man
is to protect himself

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together with his family. I first started talking about peace. If you
are a custodian of peace, and you refuse to maintain peace,
you
refuse to maintain peace, saying that you are taking orders from
government, the very government which says that I am going
to kill
you - no honourable people, this is stupidity. Now, there is no
wisdom in this at all, it is utter stupidity. That is why
I said if
the LLA is being armed today, being armed with weapons at Security
Lesotho - if today it is being said that the LLA should
be left
alone, they are just dagga dealers who are carrying AK 47s, I said
that if these things do happen, as we see them now and,
if no action
is taken and these things continue, ladies and gentlemen, I said you
should listen to me, I am not speaking from Mpharane,
I am not in
Mokhotlong. I am speaking here in Maseru. This camera should focus
into my mouth.

I said National Party members, wherever you can get a fire-arm, get a
fire-arm because I will not be there when you are

14

being attacked. Stand by your corner, where you are standing, I will
see where I will position myself at my home. Ladies and gentlemen,
I
do not usually speak in this manner. Those who know me should know
that I am not an irresponsible person, a person without
responsibility.
But then I ask myself, I say those who have to
maintain peace, it is being alleged that they fear donor countries.
Is the donor
going to give you money when you are dead? Is the donor
going to give out money and yet you see here is somebody approaching
you
furtively. We say, we said that security forces should support
the government, much as we do got like it. The government is secretly

plotting against us. I can see who else this government is secretly
plotting against. That is why I say, in my position still being
the
leader of this National Party, I absolve myself of all blame because
I do not know the D-Day.

Gentlemen, look for fire-arms wherever you can get them. Now I say
ladies and

15

gentlemen I want Co ask the gentlemen who are in charge of the
Security Forces in this country - LLA arms itself and nothing is

being done about it. When Rets'elisitsoe realises that death is
imminent to the National Party members, he had to talk to National

Party members - He is obliged to say to party members - "Arm
yourselves" Ntate Sekautu says his followers should arm

themselves. Mofeli will say his followers should take up arms. If you
are in charge of the Security forces, you wait until the
present
situation in Lesotho deteriorates to the level of the Somali
situation and be like... what is his name? Like... Aided,
with ten
forces within this country. Is that how you members of the Security
forces preserve peace in this country? Because in
actual fact, if you
are afraid of the LLA, we are saying at least the LLA will finish us
fighting.

Your
conscience through which you can attempt to ensure that there is
peace in the

country,
when there is nonsense, it does not

16

matter
whether it is brought by a minister or not. When one breaks the law
and creates his own small army, you have to intervene.
It is for
these reasons that I say National Party members should find a way of
saving themselves because I can see it is a hopeless
situation.

Ladies
and gentlemen, time to speak truths has come, time to speak truths
has come and we will apeak them in this manner that I
am saying them.
Those LLA men who are camping at Mokhotlong, those who are fighting
against the Crown, because a policeman is the
Crown, even a
child-police officer can arrest you because he is respectable he
represents the Crown, is it being alleged that these
ones are
glorious, they cannot be arrested. I will not talk more than this,
lest perhaps, I be misinterpreted. But we wanted clarity,
so that the
day Mofeli defends himself, the day Sekautu defends himself, it will
be as a result of this Security forces having
abandoned their
responsibility. It is the

17

first
time - there is nowhere we, as National Party members ever said than
we had children in the police force, nowhere did we say
we have
children in the army. Soldiers are the people who maintain, the peace
of the country. The police maintain the peace of
the country, ladies
and gentlemen.

In any
event, God's truth, Jesus' truth is that irrespective of one's
political outlook whether one is a member of the BCP, nobody
wants
his child to be killed; whether you are a member of the MFP nobody
wants his child to be killed; whether you are a member
of the BNP,
nobody wants his child to be killed. Oh commanders we beg you, do not
play games with our children, lull them into
a false sense of
security, until the LLA returns from Pretoria. Do not fool around
with our children - We do not want to say so.
but we are compelled to
say these things, we do not want to talk about. We say we know they
are accustomed to taking orders. We
plead with the senior officers
not to make sacrificial lambs with our issues.

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Ladies
and Gentlemen, it is with great agony that I say these things. I was
a Government minister for years, one of my duties in
which I have
experience more than any of my colleagues here who have also been
government ministers - difficult as it was, was
to help the
government to have good governance - that is where government is
confronted with problems if it is the government,
much as we do not
like it, we still made an effort to assist it where we could. Each
and every one who took an oath before His
Majesty, much as we are
observing the oath of secrecy will continue to do so -we remain
committed to assisting a government, if
it is a self respecting
government. But a government which stalks its armed forces, get lost
forget."

Earlier
at page 15 the accused said:

"When we thought about the matter it became apparent to us that
Mkhonto'we-Sizwe is going to train with the SADF. That General,
who
helped to form LLA, Liebenberg,

19

takes these LLA people, the LLA of this congress government of which
Ntate Mokhehle swore there at PTS saying that he had disbanded
the
LLA. He swore before the police there that he had disbanded the LLA
-There is LLA secretly being taken to the R.S.A. to train
together
with SADF and Liebenberg so that before he retires as a General, the
LLA should have trained and returned here. When there
are soldiers in
the country and the police as well, why is there this secret training
ladies and gentlemen? Against whom is this
clandestine training
directed? Again, who is this person, at whom, this secret training is
aimed?"

The
meaning of the speech by the accused, especially the parts I have
quoted above, is very clear. He starts by saying that the
L.L.A. is
part of the Government of Lesotho. He alleges that members of L.L.A.
are being trained by a certain General Liebenberg
in the Republic of
South Africa. He refutes the statement made by the Prime Minister at
P.T.C. that L.L.A. has been disbanded.
He then

20

addresses
the custodians of peace, the armed forces, and accuses them of being
stupid to obey orders from the Government which is
going Co kill
them. The LLA is being armed at Security Lesotho. He then appeals to
members of his National Party to get firearms
wherever they can get
them to defend themselves because he will not be there when the LLA
accacks them.

At page
19 again the accused directs his criticism at the commanders of the
armed forces (Security forces) and asks them why they
remain doing
nothing when the LLA is being armed. He accuses the commanders of the
armed forces of waiting until the present situation
in Lesotho
deteriorates to the level of the Somali situation. He asks members of
the security forces whether that is how they preserve
peace in this
country. He completes this part of the speech by saying if commanders
of the security forces are afraid of LLA, members
of his party will
be finished by the LLA whilst fighting.

He warns
the security forces that when one breaks the law and creates one's
own small army, whether he is a Minister or not, the
security forces
have to

21

intervene.
He finally pleads to the commanders of the security forces not to
make sacrificial lambs with their (accused's) children
who are
members of the security forces by lulling them into a false sense of
security until the LLA returns from Pretoria. He alleges
that they
remain committed to helping a government, if it is a self-respecting
government. But a government which stalks its armed
forces should not
be helped.

It seems
to me that the parts of the speech made by the accused which have
been quoted above, especially the parts which have been
underlined,
show that the accused had a seditious intention in terms of section 3
(1) (i), (ii) and (iv) of the Proclamation.

it
cannot be said that the accused was exercising his rights under
section 3 (1) (a) (b) and (c) of the Proclamation. It cannot
be said
that he was pointing out errors or defects in Government or
constitution of the Lesotho as by law established or in legislation

with a view to the remedying of such errors or defects. What he was
doing was to bring into hatred or contempt or to excite disaffection

against the Government of Lesotho as by law established.

22

Section
3(2) of the Proclamation provides that in determining whether the
intention with which any act was done, any words were
spoken, or any
document was published, was or was not seditious, every person shall
be deemed to intend the consequences which
would naturally follow
from his conduct at the time and the circumstances in which he so
conducted himself.

In
Chipembere v. Reginan - supra - Clayden F.C.J. held that a
sub-section corresponding to sub-section (2) (similar to our section

3(2) was considered by that court in Buchanan v. R. and. it was held
that the word 'deemed' was not meant to allow artificial intention
to
shut out actual intention. In the present case the Court has
considered the words used by the accused and the circumstances
under
which they were used. There can be no doubt that the accused was
actually exciting His Majesty's armed forces to attempt
to procure
the alteration otherwise than by lawful means, of the Government of
Lesotho as by law established. He was saying that
the Government of
Lesotho was training the LLA and that after such training the LLA
will return to Lesotho and kill members of
the security forces. By so
doing the accused was obviously bringing into hatred and

23

concempt
the Government of Lesotho by members of the armed forces. He was also
exciting disaffection by the members of the armed
forces against the
Government of Lesotho.

The
accused was also raising discontent or disaffection amonger His
Majesty's subjects or inhabitants of Lesotho. They would feel
very
unhappily when they heard that the Government of Lesotho was training
a secret army in a foreign country for the purpose of
killing members
of the country's armed forces. Some of His Majesty's subjects have
their children in the armed forces.

In his
defence the accused says that in his speech he was appealing to the
members of the Council of State to convene a meeting
and to consider
the truthfulness or otherwise of these allegations. I do not agree
with the accused that his speech was exclusively
directed to the
members of the Council of State. it is correct that on page 17 of his
speech (the English version) he appealed
to the Council of State.
However in the rest of his speech he appealed to and criticized
members of the armed forces in general.
He accused them of being
stupid for not

24

doing
anything when members of L.L.A. were being armed at Security Lesotho
in order to come and kill them. He says that it was alleged
that they
feared donor countries. He asked them when donor countries would give
them money when they are dead. At this stage the
accused was directly
addressing the armed forces in general.

It is
common cause that in terms of section 14 (2) of the Constitution of
Lesotho the freedom of expression is not absolute. it
provides that
nothing contained in or done under the authority of any law shall be
held to be inconsistent with or in contravention
of this section to
the extent that the law in question makes provision -

1. in
   the interests of defence, public safety, public order, public
   morality or public health; or

   
   

2. for
   the purpose of protecting the reputations, rights and freedoms of
   other persons or the private lives of persons concerned
   in legal
   proceedings, preventing the disclosure of information received in
   confidence, maintaining the authority and independence
   of the
   courts, or regular ing the technical administration or the technical
   operation of telephony, telegraph, posts, wireless

   
   

25

broadcasting or television; or

3. for
   the purpose or imposing restriction upon public officers.

   
   

In the
view that I take the Proclamation deals with or makes provision in
the interests of public order. The effect of the speech
by the
accused was to undermine public order in the sense that he was
bringing into hatred or contempt or was exciting disaffection
against
the Government of Lesotho as by law established. He was exciting the
members of the armed forces to attempt to procure
that alteration,
otherwise than by lawful means, of Government Lesotho as by alw
established. it is the duty of the armed forces
to support the
Government of Lesotho and to obey orders by their commanders. The
accused is saying that that should stop because
the present
government is not a self-respecting government.

In
Chipembere's case (supra) the essential elements of the offence
created by a statute similar to our Proclamation are:

1. The
   words charged were said. In the present case the defence admitted
   the words charged were said;

   
   

26

2. The
   circumstances in which, they were said were found; they were said at
   a political, rally held at 'Manchabiseng Bus Stop;

   
   

3. Explanations
   given by the accused as to the particular sense in which he used
   some words were disbelieved; and

   
   

4. General
   evidence by the accused that he did not in the use of the words, or
   some of them, have actual seditious intention was
   disbelieved.

   
   

I have
considered the evidence of the accused as to the particular sense in
which he used some words and I do not believe him. I
am of the
opinion that he had seditious intention.

Mr. Kuny,
S.C. submitted that when the accused made his speech at 'Manthabiseng
bus stop he believed that what he said was true.
What the accused has
said must be accepted as true because his evidence has not

27

been
rebutted. His evidence is reasonably possibly true. He submitted that
sedition cannot be proved by recklessness but actual
intention must
be proved.

I do not
agree with the above submissions. In the accused's own owrds the
Prime Minister stated at P.T.S. that L.L.A. had been disbanded.
In.
his defence the accused failed to prove that the statment of the
Prime Minister was not true. A copy of "Lesotho Today"

dated the 16th to 22nd June, 1994 was handed in by the defence. There
is nothing on page 4 of that paper that L.L.A. has not been

disbanded. What is alleged on that page is that the President of the
Republic of South Africa said Dr. Mokhehle asked Pretoria
for
military help earlier this year while South Africa was preparing for
all-race elections, but added the government hesitated.
In my view
that statement by the President of South Africa did not prove that
L.L.A. was not disbanded.

In
Nyamakazi v. President of Bophuthatswana 1992 (4) S.A. 540 at pp.
566-567 Friedman, J. said

"I will attempt to formulate a series of rules for the
interpretation of a written constitution with a bill of rights, which

I do with some reservations because of the complexity of the

28

subject. They are:

(i) The basic question is one of law; does the proposed measure, or
one that has been

enacted, accord with the constitution, which in this case is the
supreme law of the Land? If it does, it is valid, lawful and in

force. If not the Supreme Court, which exercises a judicial check in
terms of the constitution, will strike it down, and declare
it ultra
vires the constitution.

(ii) The method of interpretation or construction is an open-ended
process of elucidation and commentary which explores, reads
into,
derives and attaches significance to every word, section or clause in
relation to the whole context. Therefore, interpretation
is not a
conclusion but a process which searches for the exact meaning of
words and use of terms.

(iii) However the language is construed, its ordinary grammatical
meaning cannot be dissolved away;

(iv) It is recognised and settled that a constitution is to be
liberally construed, according to its terms and spirit, to give

effect to the intention of its framers, the principles of government
contained therein and to the objectives and reasons for its

legislation.

(v) In interpreting a constitution, the ordinary canons and rules"of
interpretation of statutes must yield to a more liberal
construction.

(vi) A significant synthesis can be

29

arrived at between the apparently conflicting approach of the
'positivist' and 'libertarian' schools in the interpretation of a

constitution by what Kentridge JA referred as 'constitution...,
embodying fundamental rights, should as far as language permits,
be
given a broad construction' (the Moagi case supra at 184. The
emphasis is mine.) This in my view is the 'golden mean' between
the
two said approathes.

(vii) Constitutional provisions which are regarded as far-reaching,
and in certain instances as absolute, must receive a more extensive

and humanistic interpretation than those of an ordinary statute which
is limited.

(viii) In that constitutions are expected to survive for a lengthy
period of time, and because the process of amending or revising
is
more difficult and onerous than for an ordinary statute, they are not
bound by the strict or confined interpretations applied
to the
construction of criminal or other statutes.

(ix) The strict interpretation applied to a contract should not be
assigned to a constitution.

(x) The plain words of relevant clauses of the constitution must be
looked at, and the language used must not be given a forced,
narrow
or technical interpretation which does violence to the language
thereof.

(xi) It must be interpreted in the context, scene and setting that
exists at the time, and not when it was passed, otherwise it
will

30

cease Co take into account the growth, of the society which it seeks
to regulate.

(xii) The fundamental human rights contained in a constitution are
the moral and legal norms relating to the rights of individuals
and
the concomitant powers of the Legislature in regard thereto.
Therefore, an invasion of those rights that cannot be justified
by
the limitations imposed must be struck down by the Supreme Court,
because a law that ignores the legal and moral standards of
a bill or
rights cannot be just.

(xiii) The onus of proving that a violation of a fundamental right is
justified, by virtue of the limitations imposed on such rights,
rests
on the Government or administration.

(xiv) A 'purposive' construction of a bill of rights is necessary in
that it enables the Court to take into account factors other
than
mere legal rules. These are the objectives of the rights contained
therein, the circumstances operating at the time when the

interpretation has to be determined, the future implications of the
conscruction, the impact of the said conscruction on future

generations, the taking into account of new developments and changes
in society.

(xv) Enactments which are discriminatory, or which classify groups or
classes for special treatment, must be strictly construed,
and may
only be justified on the basis of a compelling State or national

31

interest, which must be proved."

I
respectfully agree with the learned judge. The constitution or
Lesotho is the supreme law of the Land. Any act of Parliament or
any
law which does not accord with the Constitution must be struck down
and be declared as ultra vires the constitution. The issue
in the
present case is whether the Proclamation accords with the
constitution in terms of section 156 (1) of the Constitution.
It
seems to me that although the Proclamation is an old piece of
legislation it is not inconsistent with the constitution of Lesotho.

The provisions of section 3(1), (a), (b), (c) and (d) are consistent
with the Constitution.

Section 3
((1) (i) (ii) (iii) (iv) and (v) of the Proclamation accord with
section 14 (3) of the Constitution which reads as follows:

"A person shall not be permitted to rely in any judicial
proceedings upon such a provision of law as is referred to in
subsection
(2) except to the extent to which he satisfies the court
that that provision or, as the case may be, the thing done under the
authority
thereof does not abridge the

32

freedom guaranteed by subsection (1) to a greater extent than is
necessary in a practical sense in a democratic society in the

interests of any of the matters specified in subsection (2) (a) or
for any of the purposes specified in subsection (2) (b) or (c)."

I have
come to the conclusion that the statement of the accused regarding
appointment of judges on political party lines was not
seditious. I
accept the accused's explanation that he was warning the Government
and that it was before the appointments were made.

I have
considered the statmeat of the accused as a whole and have come to
the conclusion that the Crown has proved its case beyond
a reasonable
doubt. I therefore find the accused guilty of contravening section
4(1)(b) of the Proclamation.

My
Assessors agree. Sentence:-

R200 or 2
years' imprisonment.

33

CHIEF
JUSTICE

18th
October, 1994.

For Crown
- Mr. Mdhluli

For
Accused - Mr. Kuny, S.C.