(Bishop of Roman Catholic
Diocese of Port Louis v Tengur [2004] UKPC 9; 2004 (16) BHRC
21).

[17] In any event, Lesotho’s
treaty commitments do not support the appellant. Lesotho (it was
common cause before us) has ratified
the International Covenant on
Civil and Political Rights (ICCPR), 1966; the Convention on the
Elimination of All Forms of Discrimination
against Women (CEDAW),
1981; and the African Charter on Human and Peoples’ Rights, 1981.

[18] The ICCPR provides in article
3 that

“The States Parties to the
present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all civil and
political rights set forth
in the present Covenant”.

Furthermore it
provides in article 26 that

“All persons are equal
before the law and are entitled without any discrimination to the
equal protection of the law. In this respect,
the law shall
prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on
any ground such as
race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth
or other status”.

A report of the Human Rights
Committee of the ICCPR in 1989 published a general comment (General
Comment 18 (Thirty-seventh session
1989) Report of the Human Rights
Committee Vol 1, UN doc A/45/40 as reproduced in Eide et al (eds)
Economic, Social and Cultural Rights (2^nd ed 2001)
173-5) on the implementation of article 26. Paragraph 8 states:

“The
enjoyment of rights and freedoms on an equal footing, however, does
not mean identical treatment in every instance”.

In fact, the Committee (paragraph
10) further comments on the adoption of special measures to ensure
the attainment of equality
as follows:

“The Committee also wishes
to point out that the principle of equality sometimes requires State
parties to take affirmative action
in order to diminish or eliminate
conditions which cause or help to perpetuate discrimination
prohibited by the Covenant. For
example, in a State where the
general conditions of a certain part of the population prevent or
impair their enjoyment of human
rights, the State should take
specific action to correct those conditions. Such action may
involve granting for a time to the
part of the population concerned
certain preferential treatment in special matters as compared with
the rest of the population.
However as long as such action is
needed to correct discrimination in fact, it is a case of legitimate
differentiation under the
Covenant”.

Measures must thus be taken under
the ICCPR to ensure the attainment of restitutionary equality, which
are temporary and aimed at
eliminating inequality in a specified
segment of society.

[19] CEDAW is the definitive
international legal instrument requiring respect for and observance
of the human rights of women.
Article 3 provides a general
obligation

“[t]o ensure the full
development and advancement of women, for the purpose of
guaranteeing them the exercise and enjoyment of human
rights and
fundamental freedoms on the basis of equality with men”.

In order to achieve this obligation
article 4 provides for a limited form of positive discrimination or
affirmative action. Article
4 provides that

“Adoption
by States Parties of temporary special measures aimed at
accelerating de
facto
equality between men and women shall not be considered
discrimination as defined in this 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
equality of opportunity and treatment have been achieved”.

It thus allows State Parties the
right to adopt “temporary special measures” aimed
at accelerating de facto equality between men and women.
While positive discrimination is thus allowed, the Convention is
very clear that this does not sanction the maintenance
of unequal and separate treatment; once equality of opportunity and
treatment has been achieved
the measures adopted must be
discontinued.

Lesotho, it may be noted, has filed
a reservation to the Convention to the effect that it shall not take
any legislative measures
under CEDAW if those measures would
conflict with the Lesotho Constitution. ( Acheampong “The
Ramifications of Lesotho’s Ratification of the Convention on the
Elimination of all Forms of Discrimination Against Women”,
(1993) Lesotho Law Journal vol 9 no. 104).

[20] The African Charter on Human
and Peoples’ Rights, 1981 also protects equality. Article 2
states that:

“Every individual shall be
entitled to the enjoyment of the rights and freedoms recognised and
guaranteed in the present Charter
without distinction of any kind
such as race, ethnic group, colour, sex, language, religion,
political or any other opinion, national
and social origin, fortune,
birth or other status”.

The Charter makes provision for
special measures to be taken in the protection of certain groups in
society in article 18(3) and
(4):

“18 (3) The State shall
ensure the elimination of every discrimination against women and
also the protection of the rights of
the woman and the child as
stipulated in international declarations and conventions.

(4) The aged and the
disabled shall also have the right to special measures of protection
in keeping with their physical or moral
needs”.

Although “special measures” are
only mentioned in article 18(4) with regard to the rights of the
aged and disabled, the use of “also” in article
8(4) suggests that the expression may extend to women’s rights.
Furthermore article 18(3) explicitly
mentions other international
obligations to protect women’s rights. As already mentioned,
CEDAW makes provision for special
measures to be taken to ensure the
protection of women’s rights.

These articles (as Acheampong
The African Charter and the Equalization of Human Rights
(1991) 7 Lesotho Law Journal no. 2 at 29 notes) are also a clear
recognition that the equality entailed in the enjoyment of human
rights and fundamental freedoms does not necessarily
entail formal
equality.

[21] In 1997 the SADC heads of
state issued a formal Declaration on Gender and Development. It
noted the undertaking by member
states in Article 6(2) of the SADC
Treaty (to which Lesotho is also a party) not to discriminate on
grounds of gender, and recorded
that all SADC member states had
signed CEDAW (or were “in the final stages of doing so”
). It committed SADC members inter alia to

“[e]nsuring
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 target of women in political and
decision-making structures by year 2005".

(It
may be noted in passing that the official SADC website,
http://www.sardc.net
records the current position as being that set out in the table we
annex).

[22] It is accordingly evident that
if regard is had to Lesotho’s international law obligations,
these, if anything, reinforce
the interpretation of section 18(4)(e)
of the Constitution and require equality which is substantive, not
merely formal, and restitutionary
in its reach.

[23] Even if this is so, the
appellant contends, the respondents have failed to establish a
constitutional justification for the
infringements of the
appellant’s rights they are constrained to admit. This is stated
to be on each of the main bases summarised
in paragraph [8] above.

[24] As regards the first - the
asserted misconception by the court a quo of “the
justificatory onus”, and in particular the contention that
it failed to apply this court’s earlier decision in ’Mopa,
supra - this has to be said. Justification, it should
immediately be noted, does not always require evidence. The
limitation exercise
is “a process, described in S
v Makwanyane and Another as ‘the weighing up of
competing values, and ultimately an assessment based on
proportionality...which calls for the balancing
of different
interests’” (National Coalition for Gay and
Lesbian Equality v Minister of Justice supra at paras
[33]-[35]). It will often require factual material to be placed
before court (cf. Moise v Greater Germiston TLC:
Minister of Justice Intervening 2001 (4) SA 491 (CC) at
para [19]-[20]), but there are also cases where the
justification is self-evident (cf. R v Oakes
(1986) 26 DLR (4^th) 200 (SCC) at 226-7).

[25] Did the court a quo
misdirect itself in relation to following our earlier decision in
’Mopa supra? In that matter we dealt for the
first time in some detail with the question as to the proper
approach to be adopted in applying
the Constitution, more
particularly when an issue of infringement which is sought to be
justified arises. We did so in general
terms, not in relation to
the claims made specifically under sections 18 and 20, as they are
in this case. The core of our judgment
in the relevant respect reads
as follows:

“The
Constitution does not provide (as some constitutional instruments
do) expressly for the justification 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 authorised where, in
accordance with the
broad test articulated by Dickson CJC in the Canadian Supreme Court
in the well known matter of R
v Oakes
(1986) 26 DLR (4^th)
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
proportionality
test requires that the means chosen to limit the
right are appropriate. Dickson CJC said in this latter respect:

‘There
are, in my view, three important components of a 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 irrational 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 (4^th)
321 at 352. Thirdly there must be a 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 (S v
Makwanyane (supra) at para [102]), and it must be discharged
‘clearly and convincingly’ (S v Mbatha, S v Prinsloo 1996
(2) SA 464 (CC). In Lotus River, Ottery, Grassy Park Residents
Association v South Peninsula Municipality 1999 (2) SA 817 (C)
at 831D, it was stressed that:

‘[t]here
must be a reason which is justifiable in an open democratic society
based on human dignity, equality and freedom for the
infringement of
a constitutional right. Further, the limitation must be shown to
serve the justifiable purpose’”

(at
654H-655F).

[26] The opening words of the
passage from ’Mopa supra just quoted refer to
the lack of a general limitation clause under the Lesotho
Constitution (in contrast, for instance, with that
of South Africa).
But in relation to some of the provisions of chapter II there are
specific limitation provisions. Section 18(4)(e),
and the
concluding paragraph of that sub-section (quoted in paragraph [9]
above), is one such. Section 20(2) is another: it is
effectively a
cross-reference to section 18(4)(e). The appellant’s argument
does not address these, in its castigation of the
court a quo
for not applying ’Mopa, supra.

[27] The proper inquiry is that
whether section 26(1A) (a) and (b) are reasonably justifiable
measures in the context indicated
by the Constitution. The more
general test in ’Mopa supra - with its
three components - assists in answering that question.

[28] It is not true that the court
a quo gave no consideration to ’Mopa, supra.
The main judgment makes frequent explicit reference to it, and its
reasoning appears to track its elements, in considering the
factors
advanced on behalf of the respondents in justification of section
26(1A)(a) and (b) of the Election Act.

[29] Making express reference to
this court’s decision in ’Mopa supra,
the court a quo proceeded to consider the material put before
it regarding justification. That material amounts to the following.
Some 51 per
cent of the people of Lesotho is female. Yet currently
only 12 per cent of the seats in the National Assembly are held by
women.
Thus while throughout the world, the under-representation of
women in public life is marked, in Lesotho the disparity is
particularly
acute. The holding of the first democratic local
government election in Lesotho presented an obvious opportunity to
address it.
The African Union requires member states to secure
equal participation for women (thus 50 per cent), while SADC, as has
been seen,
sets a target of at least 30 per cent representation by
women in political and decision-making structures by 2005.

[30] The impugned provisions,
moreover, were supported by the IEC. This, as its name indicates,
is an independent institution created
by amendment to the
Constitution (section 66), appointed by the King acting in
accordance with the advice of the Council of State,
comprising a
chair who has held or is qualified to hold “high judicial
office” and two other members with that qualification or
who possess “considerable experience and [have] demonstrated
competence in administration or in the conduct of public affairs”.
An affidavit was filed before the court a quo on its behalf
by one of its three members stressing the serious imbalance in the
representation of women in public life in Lesotho,
and supporting
the impugned measures. In this regard, reference is made by the
deponent to the fact that seats reserved for women
in one election
in respect of a particular seat are open to both sexes in the next
election, while the whole system of reservation
of seats has a
so-called “sunset clause”: its remedial effect is intended not
to be permanent, but to last for only three elections.

[31] The evidence also stresses
that Lesotho - like some other constitutional democracies - has
chosen (in relation to local government)
to retain a
“first-past-the-post-electoral” system in preference to
proportional representation. This is for fundamental policy
reasons, related to a belief in the value of constituency
representation, a concern that proportional representation
inevitably
intends to exclude independent candidates, and a
conviction that Lesotho’s model is particularly suitable for local
government
as it allows wide representation on local councils.
Speaking on behalf of the IEC, the deponent also points out that the
effect
of the legislation on the appellant “is not great in
that he may not stand in his home division (but may stand in any
neighbouring division) for the first election
only”.

[32] The court a quo in the
majority judgment not only recites, quite explicitly, the three
requirements summarised in ’Mopa supra.
It recorded, too, “that the objective of the limitation is
sufficiently substantial and important, is now common cause and it
cannot now be open
to doubt”. Correctly it posed the
question whether the means chosen to limit the affected rights were
appropriate - in the obvious sense
of meeting the ’Mopa
criteria - and whether the respondents had established justification
in this sense.

[33] The evidence before the court
a quo was furthermore that the IEC had devised a procedure for
the establishment of electoral divisions reserved for women in a way
to
prevent any political party from deriving benefit from the manner
of allocating seats exclusively for women candidates. Its proposal
was also no arbitrary imposition: it was the subject of a meeting it
convened attended by two delegates from all registered political
parties; the proposal was put to the delegates, who unanimously
supported it.

[34] The procedure for the
application of section 26(1A) is in essence this. Each political
party may select one of its delegates
to represent that party in
drawing a ballot to fix the first division from which the count to
determine the divisions in a particular
council reserved for women
commences. The effect of such a ballot is a random determination of
reserved divisions, so that parties
cannot know beforehand which
divisions are to be reserved exclusively for women. The example is
given that where a particular
council is allocated eleven divisions,
the latter is numbered from 1 to 11, the numbers put in a box, and
the delegate chosen by
the political party to draw for that council
draws a number. The division represented by that number, whatever
it is, becomes
the first division. Thus if division no. 5 is drawn
in the ballot, division no. 7 (the third division, counting division
5 as
the first division) becomes the division reserved for women, as
do divisions 10 and 2. In this way the one-third reservation of
electoral divisions for women is indeed randomly selected. Neither
the IEC itself nor any political party has any way of predicting
which division is so reserved. The random components make for
fairness, not arbitrariness. No challenge was directed at these
features.

[35] The appellant however contends
that the impairment of his constitutional rights so conceded is not
in fact justified: that
in particular, other alternatives to enhance
political representation by women in local government existed, less
intrusive of Chapter
II rights. To demonstrate this, he offered one
alternative himself. It amounts to this. He refers to electoral
provision for
the election of chiefs - traditional leaders - by
ballot, provision being made for two ballot boxes in each division,
one to be
used in respect of chief-candidates and another in respect
of ordinary candidates. The same, the appellant contends, could be

accomplished by pairing with each division reserved for women a
division not so reserved, and providing for two ballots - one for
the female representative and one for the open representative - in
respect of the paired divisions.

[36] As was however pointed out in
argument on behalf of the respondents, the model to which the
appellant refers in fact (although
provided for by section 4(a) of
the Local Government Act, 1997) has since been replaced (by section
4 of the Local Government (Amendment)
Act, 5 of 2004) and has not
been implemented. This aside, it is pointed out, the proposed model
has distinct disadvantages. In
the first place, the suggested
“pairing” effectively negates delimitation which has taken
place. That delimitation has been
predicated upon the constituency
and “first-past-the-post” systems operative in Lesotho. The
appellant’s model would undo
that, and deprive individual
divisions - delimited according to criteria identifying them as
appropriately separate - from selecting
each its own representative.
As the court a quo noted, the proposed model is not simple -
an important attribute, it might be thought, of electoral
provisions, particularly at
local government level - and presents
obvious opportunities for confusion.

[37] Of course identifying flaws in
an alternative model propounded by a litigant in the position of the
appellant does not of itself
answer the threefold inquiry relating
to justification outlined in ’Mopa supra.
Conversely, however, an inquiry as to what is reasonably justifiable
is not resolved by presenting a possibly preferable model.
A
legislative measure is not unconstitutional because arguably, either
as a matter of conception in policy or execution in drafting,
a
better one might conceivably be devised.

[38] This leads to the last of the
appellant’s attacks: the contention that the court a quo
was unduly deferential in accepting the justification proffered by
the respondents. The constitutional function of courts prevents
them from being deferential to the legislative or executive, in the
general sense of that word, with “its overtones of
servility, or perhaps gracious concession” (per Lord
Hoffmann in R (on the application of Prolife Alliance) v
British Broadcasting Corporation [2003] 2 All ER 977 (HL)
at paras [75] to [76]). But the proper balance to be struck was
recently expressed by O’Regan, J in Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs 2004 (4) SA 490
(CC) at para [48]:

“[48] In
treating the decisions of administrative agencies with the
appropriate respect, a court is recognising the proper role of
the
Executive within the Constitution. In doing so a court should be
careful not to attribute to itself superior wisdom in relation
to
matters entrusted to other branches of government. A court should
thus give due weight to findings of fact and policy decisions
made
by those with special expertise and experience in the field. The
extent to which a court should give weight to these considerations
will depend upon the character of the decision itself, as well as on
the identity of the decision-maker. A decision that requires
an
equilibrium to be struck between a range of competing interests or
considerations and which is to be taken by a person or institution
with specific expertise in that area must be shown respect by the
courts. Often a power will identify a goal to be achieved, but
will
not dictate which route should be followed to achieve that goal. In
such circumstances a court should pay due respect to the
route
selected by the decision-maker. This does not mean, however, that
where the decision is one which will not reasonably result
in the
achievement of the goal, or which is not reasonably supported on the
facts or not reasonable in the light of the reasons
given for it, a
court may not review that decision. A

court
should not rubber-stamp an unreasonable decision simply because of
the complexity of the decision or the identity of the
decision-maker”.

This was said in relation to
administrative acts, but its thrust holds good in relation to
legislative and executive acts too.

[39] The court a quo adopted
just such an approach. It did not act on any bland assertion of
constitutional compliance by executive or legislative
agencies. It
subjected the justification advanced to appropriate scrutiny. The
fact that it found it persuasive in the result
is not a reason to
characterise the process as unduly deferential.

[40] In my view, accordingly, the
court a quo’s reasoning was sound. Contrary to the
submission on the part of the appellant, it expressly cited and
followed our earlier decision
in ’Mopa supra.
It did so correctly. The impugned measures were, in the language
of Dickson CJC (in R v Oakes supra quoted in
’Mopa at 654I-655C), “carefully
designed to achieve the objective in question”. They were
equally not “arbitrary, unfair or based on irrational
considerations”. They were indeed “rationally
connected to the objective”. And as regards the means,
the court a quo correctly considered that those employed to
advance greater electoral representation of women indeed impaired
“as little as possible” the rights in question.
This is particularly because of their rotating mechanism, their
restricted lifespan and the fact that fully
two-thirds of seats
remain open to all-comers. Thirdly, in all the circumstances there
was a proportionality between the effects
of the measures and the
objective, conceded by the appellant himself to be “of
sufficient importance”, again in the sense used in R
v Oakes supra.

[41] The appeal must accordingly
fail.

[42] There is also a cross-appeal.
This was noted conditionally by the respondents, in the event of it
being held that the court a quo had dismissed their in
limine objection to the non-joinder of all other candidates in
the election (no express order was in fact made). In view of the
conclusion
in relation to the appeal, the cross-appeal becomes moot.
It is accepted by the parties that any costs in relation to it are
insignificant.

[43] Counsel for the respondents
had asked that, in the event of the appeal being dismissed, the
appellant be ordered to pay the
costs. There is no single rule
relating to order of costs in constitutional matters, as little as
there is in other forms of civil
proceedings. Nevertheless, there is
a general reluctance by courts to make an adverse order of costs in
a substantial constitutional
challenge of a public nature, as this
court most recently has had occasion to note (Khathang Tema
Baitsokoli and Another v Maseru City Council (C of A
(Civ) no. 4/05, delivered on 20 April 2005, p 21, and further
authorities there cited; and cf. Road Transport Board v
Northern Venture Association C of A (Civ) no. 10/05, 20
April 2005, p 13). The issue raised in the present case was
important. The appellant had sought to represent a particular
electoral division for
reasons related substantially to the public
interest. His challenge doubtless applies to a significant number
of other would-be
contenders. A reasoned argument was advanced on
his behalf. In our view, in the particular circumstances of the
case, this would
not be an appropriate matter to order the
unsuccessful appellant to pay the respondents’ costs.

[44] The order the court makes is
accordingly as follows:

(a) The appeal is dismissed.

(b) No order is made in relation
to the conditional notice of cross-appeal.

(c) No order is made in relation
to the costs of either the appeal or the conditional notice of
cross-appeal.

DATED AT MASERU THIS 30^th
DAY OF JUNE 2005

_________________________________

J J Gauntlett

JUDGE OF APPEAL

I agree; it is so
ordered. ___________________________ J H Steyn

PRESIDENT

I agree: _____________________________

F H Grosskopf

JUDGE OF APPEAL

I agree: _____________________________

L Melunsky

JUDGE OF APPEA L

I agree: _____________________________

J W Smalberger

JUDGE OF APPEAL

Counsel for the appellant:
Adv M.E. Teele (with him, Adv. S. Ratau)

Counsel for the respondents:
Adv H.P. Viljoen SC (with him, Mr D.P. Molyneaux) Webbers, Maseru.