Makenete v Lekhanya and Others (CIV/APN/74/90) (CIV/APN/74/90) [1990] LSHC 1 (06 November 1990);

Group

Full judgment

^{IN THE HIGH COURT OF LESOTHO}

Civil Application No. 74 of 1990

BETWEEN:

Thabo Strong Makenete
Applicant

and

Major-General Justin Metsing Lekhanya
First Respondent

Leshele Thoahlane
Second Respondent

The Attorney-General
Third Respondent

JUDGMENT

INDEX

Page

The Notice of Motion 2

Termination of The Applicant's Appointment 4

The Events and Legislation of February and March, 1990 9

The King's Constitutional Role 21

Appointment of Military Councillors 31

The King's Advisory Role 40

The King's Affidavit 44

The Nature of a Coup d'Etat 59

The Efficacy of the Change 73

The Popularity of the Change 75

The Court's Finding 78

CIV/APN/74/90

IN THE HIGH COURT OF LESOTHO

In the matter between:

THABO STRONG MAKENETE
APPLICANT

AND

MAJOR-GENERAL JUSTIN METSING LEKHANYA 1ST RESPONDENT

LESHELE THOAHLANE
2ND RESPONDENT

THE ATTORNEY-GENERAL
3RD RESPONDENT

Before the Honourable the Chief Justice Mr. Justice B.P. Cullinan

at Maseru.

For the Applicant : Mr. J, Browde S.C.

Mr. K. Sello

For the Respondents : Mr. K.R.K. Tampi, Deputy Attorney-General

JUDGMENT

Cases referred to:

(1)
Mokotso & Ors. v The King CIV/APN/384/1987

(Unreported);

(2)
Union Government v Estate Whittaker (1916) A.D. 194;

(3)
Madzimbamuto v Lardner-Burke & Anor (1968)3 All

All E.R. 561 (P.C.);

(4)
Johnson's Tyne Foundry Pty., Ltd. v Shire of Maffra

(1949) A.L.R. 84;

(5)
Re Baker, Nichols v Baker (1890)44 Ch.D. 262;

/ .....

2

(6)

R v Barlow (1693)2 Salk. 609;

(7)
Sheffield Corpn v Luxford & Morrell (1929)2 K.B. 180;

(8)
Julius v Bishop of Oxford (1880)5 App. Cas. 214; 49

L.J.Q.B. 580;

(9)
Gunn v Barclays Bank (1962)3 SA 678 (A);

(10)
R v Dietrich (1946) EDL 62;

(11)
Re Neath and Brecon Railway (1874) L.R. 9 Ch.App. 263;

(12)
Central Bank of Lesotho v Phoofolo (1988) C of A (CIV)

No.6 of 1987 (Unreported);

(13)
William v Berkley (1561)1 Plowd.223; 75 E.R. 339;

(14)
Prohibitions Del Roy (1607)12 Co. Rep. 63; 11 Digest

(Repl.) 583, 176;

(15)
Abignye v Clifton (1611) Hob. 213; 80 E.R-360;

Digest 11, 521/522, 273;

(16)
Sir Henry Lea and Henry Lea's Case (1612) Godb.

198; 78 E.R. 120; Digest 11 522, 274;

(17)
The State v Dosso (1958)2 PSCR 180;

(18)
Uganda v Commissioner of Prisons, Ex Parte Matovu (1966)

E.A. 514;

(19)
Lakanmi & Ola v The Attorney-General (West) (1970)

Nigeria S.C. 58/69 (Unreported)

(20)
Sallah v The Attorney-General (1970) Ghana Const. S.C.

870 (Unreported).

The Notice of Motion:

On 27th January, 1986 His Majesty the King appointed the

applicant a member of the Council of Ministers, that is, Minister

for Health. The applicant served in that capacity until 22nd

February, 1990, when the first respondent addressed the following

letter to him, bearing the said date:

"Hon. Dr. Strong Thabo Makenete

Minister of Health

Dear Colleague,

Please take notice that your tenure as Minister of

Government is, hereby, terminated, with immediate effect.

/.....

3

Let me take this opportunity to thank you for
the

invaluable service you have performed, in the last
few

years, as Minister, in the service of your country
and

your profile.

Yours sincerely,

(Signature)

J.M. Lekhanya (Major General)

Chairman of the Military Council and Council of

Ministers"

On 22nd February, 1990 the second respondent was sworn into

office as Minister of Health. Subsequently the applicant brought

an application, by way of notice of motion, for a rule nisi,

calling upon the respondents to show cause, if any, why

"1. The purposed dismissal of the Applicant as Minister of

Health in the Lesotho Government by the First

Respondent on the 22nd February, 1990 shall

not be set aside as being invalid and of no

force or effect.

2.
The purported appointment of the Second

Respondent as Minister of Health in the Lesotho

Government, in place of the Applicant, by the

First Respondent shall not be set aside as

being invalid and of no force or effect.

3.
The Respondent shall not be ordered to pay the costs of

this Application jointly and severally the one

paying the other to be absolved.

4.
The Applicant shall not be granted such further

or alternative relief as this Honourable Court

may deem fit."

/....

The Court granted the rule ex parte. On the return date the

matter was fully argued. At the hearing the learned Counsel for

the applicant, Mr. Browde, informed the Court that the applicant

no longer sought confirmation of the rule under prayer 2.

Termination of the Applicant's Appointment:

The applicant was appointed Minister under the terms of the

Lesotho Order 1986 which took effect on 20th January, 1986.

Sections 4,5, 6, 7, and 8 of that Order read as follows:

"4. (i) The Legislative and executive

authority in Lesotho is vested in

the King and may be exercised by him

either directly or through officers

or authorities of the Government of

Lesotho.

(ii) In the exercise of his functions

under this Order or any other law

the King shall act in accordance

with the advice of the Military

Council.

5.

There is hereby established a Military Council

which shall consist of such officers as are for the time

being in charge of the Lesotho Paramilitary Force.

6.
The King, acting on the advice of the Military

Council may make any laws for the peace, order and good

government of Lesotho and to amend or repeal any law so

made including this Order or any other law in force in

Lesotho.

/ .....

5

7.

There is hereby established a Council of Ministers

which shall consist of such persons as may be appointed

from time to time by the King.

8.
The functions of the Council of Ministers shall be

to assist the King in the general administration of

Lesotho."

Those provisions were repealed and replaced by the Lesotho

(No.2) Order, 1986 published on 4th March, 1986, but which

provided, in section 1 thereof, that it be deemed to have come into

operation on 20th January, 1986. The provisions of section 2 in

part, and sections 3, 4, 5, 6, 7, 8, 9 and 10 are relevant:

"2. In this Order, unless the context otherwise

requires,

"Chairman" means the Chairman of the Military Council

appointed under section 4;

3.
(1) Subject to this Order, all laws which were

enforceable in Lesotho immediately before the coming into

operation of this Order shall continue in full force and

effect.

(2)
Any existing law which is inconsistent with

this Order shall, to the extent of such inconsistency,

be void.

(3)
This section is without prejudice to any

powers to make provision for any matter, including the

amendment or repeal of any existing law.

(4)
The existing laws shall, from the coming

into operation of this Order, be construed with such

modification, adaptations, qualifications and exceptions

as may be necessary to bring them into conformity with

this Order.

4.
(1) There is established a Council to be known

as the Military Council.

/.....

6

(2)
Subject to subsection (3) the Military

Council shall consist of,

(a) the Commander of the Lesotho

Paramilitary Force, who shall be

Chairman; and

(b) such other members as may be

appointed by the King on the advice

of the chairman.

(3)
A member of the Military Council shall be

appointed from amongst regular officers of the Lesotho

Paramilitary Force.

5. The Chairman may delegate any of his powers to

a member of the Military Council and in any such case,

the action of the member of the Military Council shall

be deemed to be the action of the Chairman.

"6. (1) There is established a Council to be known as

the Council of Ministers.

(2) The Council of Ministers shall consist of-

(a) the Chairman of the Military

Council, who shall be its chairman;

and

(b) such other members as the King may,

on the advice of the Military

Council, appoint.

7.
The function of the Council of Ministers shall be

to assist the King in the general administration of

Lesotho in accordance with section 9.

8.
(1) The King may appoint such number of Ministers

of State as he may, on the advice of the Military

Council, consider necessary.

(2) A Minister of State shall have responsibility

for such matters as may be assigned to him from time to

time, by the King on the advice of the Military Council.

9.
(1) The executive and legislative authority in

Lesotho is vested in the King and may be exercised by Him

either directly or through the Military Council or the

Council of Ministers or. other officers or authorities of

/.....

7

the Government of Lesotho.

(2) In exercise of his functions under this Order

or any other law, the King shall act in accordance with

the advice of the Military Council.

10. The King, acting on the advice of the Military

Council, may make laws for the peace, order and good

Government of Lesotho and may amend or repeal any law so

made."

There is differing phraseology above, used in connection with

the advice of the Military Council, to which phraseology I shall

have occasion to refer later. Suffice it to say that the

provisions of section 9(2) are quite specific and cover the

exercise of the King's functions under the Order or indeed "any

other law", namely that the King "shall act in accordance with the

advice of the Military Council."

It will be seen that, as far as the applicant's appointment

was concerned, the Lesotho (No.2) Order 1986 brought no change.

He was appointed by the King "on the advice of the Military

Council", and that position remained unchanged. The Lesotho Order

(No.2) 1986 made no provision for the termination of the

appointment of a Minister, but the following provision is to be

found in section 34 of the Interpretation Act, 1977:

" (1) Where an Act confers a power or imposes a duty

upon a person to make an appointment .... the person

having such power or duty shall also have the power-

/.....

8

(a) to remove, suspend, dismiss or revoke the

appointment of, and to re-appoint or

reinstate, any person appointed in

exercise of such power or duty;

(c) to specify the period for which any

person appointed in exercise of such

power or duty shall hold such

appointment.

(2) Where the power or duty conferred under sub-

section (1) is only exercisable upon the recommendation,

or subject to the approval or consent of some other

person, then such recommendation, approval or consent is

also required for the exercise of the additional power

referred to in paragraphs (a), (b) and (c) of subsection

(1)."

The applicant does not state in his founding affidavit as to

whether or not he was appointed for any specific period. Subject

to what I shall say later, a Cabinet Minister might hope that his

appointment would be for the duration of any particular Parliament

as such. That consideration does not currently apply to Lesotho,

so that I presume, and the papers filed indicate, that the

applicant's appointment was for an indefinite period. In any

event, such appointment had not been terminated on 22nd February,

1990, that is, until receipt of the letter of that date written by

the first respondent. Under the terms of the Lesotho (No.2) Order,

1986 and section 34 of the Interpretation Act however, the

applicant's appointment could only be terminated by the King, that

is, acting on the advice of the Military Council. The first

respondent's letter of 22nd February however is not expressed to

/.....

be written on behalf of and with authority of the Military Council,

in which body lay the ultimate discretion. In any event, even if

it could be inferred that the first respondent's letter represented

the decision of the Military Council, in my view the termination

of the applicant's appointment, required a formal document under

the hand of the King, expressed to be upon the advice of the

Military Council. No such document was made and the first

respondent's letter of 22nd February was therefore clearly a

nullity, that is, under the existing law applicable at the time,

the Lesotho (No.2) Order 1986.

In his answering affidavit however, the first respondent

deposes that the Royal Lesotho Defence Force ("R.L.D.F.") staged

a successful coup d'etat on 19th February, 1990, as a result of

which the Council of Ministers, as then constituted, ceased to

exist. The applicant in a replying affidavit rebuts this. He

deposes in effect that what has taken place is not a coup d'etat,

but simply a "reshuffle" of the Military Council and the Council

of Ministers.

The Events and Legislation of February and March, 1990

I turn then to the affidavits before the Court. First and

foremost there is an affidavit sworn by His Majesty the King. I

/.....

propose to defer consideration thereof until later in this

judgment. As to the parties' affidavits, they contain a wealth of

matter which no doubt will prove to be of great political and

indeed historical importance. But I approach this judgment solely

with the view that the aspects raised therein, whilst they may call

for resolution, nonetheless are not necessarily relevant to the

issues before me. I do not see that their resolution is

necessarily the function of this Court: there will no doubt be

other forums. Meanwhile, at the risk of quoting out of context,

I propose to extract from the affidavits only those aspects which

are necessary to the resolution of the said issues.

The first respondent deposed that the Royal Lesotho Defence

Force "in a swift and bloodless coup d'etat, captured power and

removed forcibly the recalcitrant elements of the Military

Council." The reference there is to three members of the Military

Council. The applicant in paragraph 10 of his replying affidavit,

observed as follows:

"I deny that the Royal Lesotho Defence Force

intervened in any way and that it effected a coup d'etat

or captured any power at all. I aver that this is the

first time that 1st Respondent has ever said that the

military have effected a coup. On the contrary, in the

/.....

first public statement made by the 1st Respondent on the

20th February, 1990 over radio Lesotho, a copy of which

is annexed hereunto marked "STM 4", he only stated that

His Majesty's powers would, for the time being, be vested

in 1st Respondent, His Majesty continuing to be head of

state.

I respectfully submit that as opposed to the events

of 1970 and 1986, as hereinbefore set out, what happened

on the 19th February, 1990 and thereafter was not a coup

d'etat at all; there was no new regime brought into being

and 1st Respondent's actions referred to hereinbefore are

purely a stratagem to dismiss ministers appointed by the

King. There cannot, in my respectful submission, be ,a

coup d'etat by Affidavit. In 1st Respondent's alleged

coup d'etat no power is alleged by him to have been

seized from anyone when and how. There is no overt act

in this connection that is attributed to the Royal

Lesotho Defence Force. The Military Council was in power

and remained in power. Because 1st Respondent could not

get his way he has resorted to the stratagem of saying

there was a coup d'etat when there was none."

/.....

The statement broadcast by the first respondent on 20th

February over Radio Lesotho, annexed to the applicant's affidavit,

reads in part as follows:

"As has been announced and for the reasons given, the

Royal Lesotho Defence Force, in an attempt to rectify

serious anomalies in the management of its administration

and affairs, has removed from their former offices in the

Military Council and Council of Ministers Messrs Thaabe

Letsie, Sekhobe Letsie, Khethang Mosoeunyane and Monyane

Mokhants'o.

At this juncture, it is with deepest regret that I take

this opportunity to inform the Basotho nation and the

world at large that His Majesty King Moshoeshoe the

Second has withheld his assent to these changes, as well

as to the filling of the vacancies in the administration

occasioned by these removals

I feel duty-bound, therefore, on behalf of the Royal

Lesotho Defence Force and the entire Basotho nation, to

announce that-

/....

His Majesty's powers, for the time being, will

be vested in me, Major General Justin Metsing

Lekhanya, with the assistance of the other

Members of the Military Council. The Council

of Ministers will continue to function as

usual.

For avoidance of doubt, His Majesty remains the Head of

State and we shall execute the duties of State on his

behalf

We wish to re-affirm our commitment to all international

agreements and obligations entered into with other

nations and international organisations; and we wish to

appeal to all friends of Lesotho to support us in our

sincere endeavour to return the affairs of Lesotho to

normalcy.

We re-affirm our commitment to the independence of the

judiciary in the discharge of its obligations to the

nation. Similarly, other public services will continue

to be performed."

/......

As to the contents of that statement, the first respondent

deposed as follows in paragraphs 19 and 20 of his answering

affidavit:

"19. His Majesty's refusal to accede to my request

created a constitutional impasse.

20. To rectify the situation, I as the Commander of

Royal Lesotho Defence Force with the support of the

Defence Force, had to assume to myself the powers of His

Majesty temporarily while a new legal and constitutional

regimen was being conceived, created and established."

On 23rd February, 1990 the Lesotho Order, 1990 was published

in a Government Gazette Extraordinary under the hand and the

authority of the first respondent. The Preamble reads as follows:

WHEREAS it is expedient to provide for the

peace, order and good government of Lesotho

until such time as a new constitution designed

to suit the interests of the Basotho Nation in

conformity with democratic principles shall

have been enacted:

AND WHEREAS it is expedient to provide, in the

interim, for the establishment of executive

and legislative authority.

NOW THEREFORE, I,

MAJOR-GENERAL JUSTIN METSING LEKHANYA

Commander of the Royal Lesotho Defence Force,

/.....

15

by virtue of the powers enabling me in that

behalf hereby order as follows;"

Section 1 of the Order provided that the Order was deemed to

have come into operation on 19th February, 1990. Thereafter most

of the provisions of the Order are relevant to the issues before

me and it proves necessary to set out those provisions:-

"3. (1) Subject to this Order, all laws which were

enforceable in Lesotho immediately before the coming into

operation of this Order shall continue in full force and

effect.

(2) The existing laws shall, from the coming into

operation of this Order, be construed with such

modifications, adaptations, qualifications and exceptions

as may be necessary to bring them into conformity with

this Order and any existing law which is inconsistent

with this Order shall, to the extent of such

inconsistency, be inoperative.

4. (1) There is established a Council to be known

as the Military Council.

(2) The Military Council shall consist of,

(a)
the Commander of the Royal

Lesotho Defence Force who

shall be Chairman; and

(b)
five other members, who shall

be appointed by the Chairman

from among regular officers of

the Royal Lesotho Defence Force.

(3)
Any appointment made under subsection (2)

(b) shall be published by the Chairman by notice

in the Gazette.

(4)
The Chairman may, in writing, remove from

office a member of the Military Council without

notice to any person and without assigning any

/ ......

16

reason.

6. (1) There is established a Council to be known

as the Council of Ministers.

(2) The Council of Ministers shall consist of,

(a)
The Chairman of the Military Council

who shall also be the Chairman of the

Council of Ministers; and

(b)
such other members as may be

appointed by the Military Council.

(3) Any appointment made under subsection (2)

(b) shall be published by the Chairman by notice

in the Gazette.

7. (1) The Military Council may appoint such number

of Assistant Ministers as may be deemed necessary.

(2) Any appointment made under subsection (1)

shall be published by the Chairman by notice in

the Gazette.

8. The Military Council may, in writing, remove from

office a member of the Council of Ministers or an

Assistant Minister, without notice to any person and

without assigning any reason.

9. (1) The King shall continue to be Head of State.

(2) The executive authority in Lesotho is

vested in the Military Council and may

be exercised by the Military Council

either directly or through the Council

of Ministers or other officers or

authorities of the Government of Lesotho.

10.
The Military Council may assign to any member of

the Council of Ministers responsibility for any business

of the Government, including the administration or

supervision of any department of Government, and notice

of such assignment shall be published by notice in the

Gazette under the hand of the Chairman.

11.
The Military Council and the Council of Ministers

may act notwithstanding any vacancy in the membership of

/.....

17

either Council.

12.
The legislative authority in Lesotho is vested in

the Military Council.

13.
(1) The Military Council may make laws for the

peace, order and good government of Lesotho and may amend

or repeal any law so made.

(2) All laws made by the Military Council shall be

styled "Orders" and shall be signed by the Chairman who

shall cause them to be published in the Gazette.

16.

Subject to this Order, all liabilities and

obligations incurred by the Government of Lesotho before

the coming into operation of this Order shall continue

in full force and effect.

17.
Where in any written law,

(a)
a reference is made to the exercise

of a function by the Prime Minister,

it shall be read and construed as a

reference to the exercise of that

function by the Chairman acting in

consultation with the Military

Council; and

(b)
a reference is made to the exercise

of a function by the King, whether

acting on the advice of any other

person or authority or otherwise, it

shall be read and construed as a

reference to the exercise of that

function by the Military Council.

18.
(1) The Lesotho (No.2) Order 1986 is repealed.

(2) Notwithstanding subsection (1), the

person who, immediately before the

coming into operation of this Order,

was Chairman of the Military Council

and Council of Ministers under the

repealed Order shall continue to be

Chairman of the Military Council and

Council of Ministers under this

Order."

/.....

On 10th March, 1990 the first respondent made another

broadcast over Radio Lesotho in which he stated, inter alia, that

for reasons specified in the broadcast,

"We have to-day requested His Majesty to proceed on a

brief sabbatical in the United Kingdom. This should

allow His Majesty ample opportunity for reflection. In

accordance with the law, in His Majesty's absence Her

Majesty The Queen will act as Queen Regent."

It is a notorious fact that His Majesty the King departed from

the Kingdom on 10th March, 1990 for the United Kingdom. Thereafter

Her Majesty Queen 'Mamohato Seeiso has carried out her

Constitutional role of Regent (see Mokotso (1) at pp.14 and 23).

That for the moment summarises the facts which led to the

present application. Central among those facts were the events of

19th February, that is, the removal from office of three members

of the Military Council, who also held the rank of Colonel, one of

whom was also a member of the Council of Ministers, and a further

Minister who also held the rank of Colonel. I use the expression,

"removal from office", for the moment, as their appointments were

never terminated by the King. The learned Deputy Attorney-General

/.....

Mr. Tampi submits that the events of 19th February, 1990 are

notorious facts, that justice cannot be blind and that the Court

cannot close its eyes to reality. Mr. Browde submits that the

Court cannot take judicial notice of such facts, but I consider

that not to do so would be plainly unrealistic. The events were

broadcast on the national radio network by the first respondent

himself and subsequently featured in other national news media.

I consider it a notorious fact that four Colonels were removed at

gun point from the Government Complex, Maseru, by members of the

R.L.D.F. on 19th February. It is also a notorious fact that three

of them were released shortly thereafter, one was arrested on

criminal charges and all were quickly replaced on the Military

Council and Council of Ministers, the entire two Councils, other

than the first respondent, being sworn into office within a matter

of days, that is, on 22nd February and thereafter.

In any event, as to the events of 19th February, there is the

first respondent's affidavit to the effect that the "recalcitrant"

Military Councillors were "removed forcibly". In this respect the

applicant deposes, as quoted earlier, that

"I deny that the Royal Lesotho Defence Force intervened

in any way and that it effected a coup d'etat or captured

power at all".

/ .....

Further, he goes on to depose that in the first respondent's

broadcast of 20th February,

"he only stated that His Majesty's powers would, for the

time being, be vested in 1st Respondent, His Majesty

continuing to be Head of State".

But it will be seen that in the opening paragraph of the first

respondent's statement on 20th February he said,

"As has been announced and for the reasons given, the

Royal Lesotho Defence Force, in an attempt to rectify

serious anomalies in the management of its administration

and affairs, has removed from their former offices in the

Military Council and Council of Ministers Messrs. Thaabe

Letsie, Sekhobe Letsie, Khethang Mosoeunyane and Monyane

Mokhants'o."

The applicant denies that the R.L.D.F. "intervened", but there

is no specific denial that the Military Councillors and the other

Minister were "forcibly removed", at least from their offices in

Government Complex, if not removed from their posts. Mr. Browde

in his submissions in reply, in submitting why the King had not

/.....

21

acted on the first respondent's advice, pointed out that at that

stage, "The Military Councillors had already been removed forcibly

I find therefore that such forcible physical removal was

effected.

Mr. Browde counters that even if such was the case, that did

not mean that the Military Councillors had been removed from

office. I am inclined to agree. Physical removal of the Military

Councillors from the Government Complex did not constitute removal

from office. As at 19th February, only the King could remove them

from office, "on the advice" of the first respondent. In any

event, even if it were the case that the Military Councillors,

constituting half of the members of the Military Council, had been

invalidly removed from office on 19th February, while such removal

might well have involved momentous political repercussions, I

cannot see that it would have constituted a revolution or a coup

d'etat.

The matter does not end there however. There is then the

aspect of what the first respondent describes as a constitutional

impasse. It is then necessary to consider the constitutional

position of the King.

THE KING'S CONSTITUTIONAL ROLE

/.....

I had occasion to consider this aspect, inter alia, in the

case of Mokotso & Ors. v The King (1) at pp. 5/38 and I wish for

convenience to adopt what I there said. As to the 1966

Constitution I observed at pp.14/15:

"The King was to have a Civil List, to be immune

from taxation, and to be immune from criminal proceedings

in his official or private capacity and from civil suit

and process in his private capacity. There was also

established the King's Privy Council to assist the King

in the discharge of His functions.

Parliament consisted of the King, a Senate and

National Assembly. As in the case of the 1965

Constitution, the Senate consisted of the twenty-two

Principal Chiefs and Ward Chiefs and eleven other

Senators nominated by the King. The National Assembly

consisted of sixty members elected by common franchise,

the boundaries thereof being fixed by a Constituency

Delimitation Commission. The power of assent to

legislation was vested in the King, who might indeed

withhold assent, that is, acting in accordance with the

advice of the Cabinet.

The King exercised much the same powers as had

Motlotlehi under the 1965 Constitution, for example, in

the prorogation and dissolution of Parliament: the King

could in certain circumstances dissolve, or decline to

dissolve Parliament against, or without the advice of the

Prime Minister. The King had the right to be consulted

by the Prime Minister and Cabinet on all matters relating

to the government of Lesotho, the Prime Minister being

obliged to keep the King "fully informed concerning the

general conduct of the government of Lesotho". The

Prerogative of Mercy was vested in the King, but such

prerogative had to be exercised in accordance with the

advice of a Pardons Committee.

Land was vested in the Basotho Nationa, but the

power to allocate such land was vested "in the King in

trust for the Basotho Nation". As distinct from the 1965

Constitution, the executive authority was vested in the

/.....

King. As in the case of Motlotlehi, the King was

required to exercise His functions in accordance with the

advice of the Cabinet (or a Minister authorized by

Cabinet). The King nonetheless could act "in accordance

with his own deliberate judgment" e.g. in the appointment

and removal of the Prime Minister, in the appointment (or

removal) of a Minister to act as Prime Minister, or in

the allocation etc., of land: it was the duty inter alia

of the King's Privy Council to advise Him in the

discharge of such functions."

To that I would add that the King might act "in his absolute

discretion" in the exercise of such functions as , the appointment

of Senators, the allocation of land and the disciplinary control

over Chiefs (see Mokotso (1) at pp.73/74). Then came the coup

d'etat of 30th January, 1970 and the Lesotho Order 1970. That

order made no provision for the Office of King, and statutory

provision was not made in respect of the Office as such, until the

Office of King Order 1970, which took effect on 20th November,

1970. The Court examined this aspect in Mokotso (1) at pp.23.29

concluded thus at p.29:

"In any event, in my judgment the Office of King

continued to exist, both under statutoy and customary

law, without break from 4th October, 1966. Further, as

the Office had continud to exist, the Constitutional

recognition and confirmation of the holder of the Office

continued also to be valid, again both under statutory

and customary law, which recognition was but repeated in

Legal Notice No.8 of 1970. In my judgment therefore, His

Majesty King Moshoeshoe II has continued to hold the

Office of King of Lesotho without break from 4th October,

1966."

/....

Meanwhile, under the Lesotho Order 1970, the executive

authority was vested in the Prime Minister and subsequently (on 5th

June, 1970) in the Regent, in whom was also then vested the power

of assent to laws made by the Council of Ministers. It was not

until 18th June 1971 however (under Order No.25 of 1971), that the

executive authority and the power of assent was once more vested

in the King, acting "in all respects in accordance with the advice

of the Prime Minister", that is retrospectively to 5th December,

1970, presumably the date of the return of the King to Lesotho.

As to the Office of King Order 1970, the Court in Mokotso (1)

observed at pp.24/25:

"It also made provision for the office of Regent,

and repeated the 1966 provisions as to the King's Civil

List, immunity of the King and Regent from taxation and

immunity of the King in respect of civil and criminal

proceedings. It also, to some extent, repeated a 1966

Constitutional provision (section 76(4)) that the Prime

Minister could himself act in the face of the King's

failure, neglect or refusal to do any act "in accordance

with advice given to him under any law", and the Prime

Minister's act would then "be deemed to have been done

by the King and to be his act". The 1966 provision

however stipulated that such power could only be

exercised in cases where the King was "required by this

Constitution to do any act in accordance with the advice

of any person or authority". In this respect, the Order

did not repeat the 1966 constitutional provisions

whereunder the King could, with regard to certain

matters, act "in accordance with his own deliberate

judgment". Further, the Order introduced a new provision

whereby if the King refused to take or subscribe to an

oath of office scheduled to the Order, or having taken

/....

and subscribed thereto, thereafter failed or refused to

abide by any of its terms, the Prime Minister could deem

Him to have abdicated, and would then by Notice in the

Gazette declare that the King was deemed to have

abdicated, in which case the King would be deemed to have

abdicated from a date specified in the Notice."

The Lesotho Order 1970 provided that the Prime Minister might

appoint Ministers (additional to those who had held the office of

Minister immediately before the suspension of the Constitution).

The 1970 Order made no provision for Ministers of State. The

Ministers of State Order 1971 (No.34) however provided that the

King "acting in accordance with the advice of the Prime Minister,

"might appoint and remove Ministers of State".

The Lesotho Order 1970 was repealed by the Lesotho Order 1973.

The latter Order provided for an "Interim National Assembly". The

Assembly consisted, inter alios, as the Court said in Mokotso (1)

at p.30, of

".... sixty persons nominated by the King "acting on

the advice of the Prime Minister" (who was obliged in

that respect to consult "such persons as are in his

opinion representative of the various shades of political

opinions in Lesotho"), and eleven persons nominated by

the King "acting on the advice of the Prime Minister"

(who was obliged in that respect to "have given

consideration to the desirability of nominating persons

who have rendered distinguished service to Lesotho and

who have knowledge of matters affecting the various

interests of the inhabitants of Lesotho")."

and further on at p.31,

/ .....

"The executive authority continued to be vested in

the King, acting "in accordance with the advice of the

Cabinet or a Minister acting under the general authority

of the Cabinet". Where the King neglected so to act under

the Order or any other law, the Prime Minister might

himself so act. The King might at any time prorogue or

dissolve the Assembly, but then only acting "in

accordance with the advice of the Prime Minister". The

previous holders of the offices of Prime Minister, Deputy

Prime Ministers, Ministers and Ministers of State were

to continue in office. Thereafter the King might appoint

and remove members of the Cabinet and Ministers of State,

acting in accordance with the advice of the Prime

Minister.

As to the Prime Minister, the King might appoint a

Minister to act as Prime Minister in the absence of the

latter and of the Deputy Prime Minister, but then only

acting in accordance with the advice of the Prime

Minister or, in his absence, the advice of the Deputy

prime Minister. If it came to a vacancy in the office

of Prime Minister, the King would then appoint as Prime

Minister the person who appeared to him to be the leader

of* the political party which commanded the support of a

majority of the members of the National Assembly."

There followed the Parliament Act 1983, as to which the Court

in Mokotso (1) observed at pp.32/33:

"It largely repeated, verbatim in places, the

provisions of Chapter V and Chapter VII of the

Constitution, dealing with the composition of Parliament,

legislation and procedure therein, and the summoning,

prorogation and dissolution thereof, and the Executive.

Parliament was to consist of the King, a Senate and a

National Assembly. The Senate consisted of the twenty-

two principal Chiefs and Ward Chiefs and eight other

Senators appointed by the King, on the advice of the

Prime Minister. The National Assembly, as with the 1966

National Assembly, consisted of sixty elected members.

The Kingdom was once again divided into sixty single seat

constituencies for which purpose a Constituency

Delimitation Commission was established under the Act.

The King however might "on the advice of the Prime

/ .....

Minister", appoint up to twenty persons as nominated

members of the National Assembly. The Senate had limited

powers, perhaps more limited than those under the

Constitution. As to the Royal Assent, if the King

declined to assent to a Bill, the Prime Minister might

himself assent thereto.

The Act provided for the exercise of the Prerogative

of Mercy by the King, in accordance with the advice of

a Pardons Committee. In particular the Act repeated the

King's powers under the Constitution to dissolve or-

refuse to dissolve Parliament, and to appoint or remove

the Prime Minister. The King could not however appoint

a Minister to act as Prime Minister except on the

latter's advice."

Then came the coup d'etat of 20th January, 1986 and the

Lesotho Order, 1986, which repealed the Parliament Act, 1983 and

which in turn was replaced by the Lesotho (No. 2) Order, 1986,

deemed to have taken effect on the latter date. The King's role

under those Orders contrasts with that under the Constitution. The

Constitution of course was introduced under the Lesotho

Independence Order 1966, made by Her Brittanic Majesty Queen

Elizabeth II in Council, "in exercise of the powers vested in Her

by section 5 of the Lesotho Independence Act 1966 and of all other

powers enabling Her in that behalf". The terms thereof can only

be construed therefore in the light of the Constitutional law of

the United Kingdom: see e.g. the dicta of Innes C.J. in Union

Government v Estate Whittaker (2) at p.203 and those of Lord Reid

in Madzimbamuto v Lardner Burke & Anor. (3) at p.572, quoted in

Mokotso (1) at p.51-

/ .....

The terms of the Constitution itself indicate, not

surprisingly, it being a 'Westminster model' Constitution, that the

role of His Majesty the King was that which has come to be

described as a 'Constitutional Monarch', as that term is understood

in the United Kingdom. In this respect the contents of paragraphs

931, 1083 and 1086 of Halsbury's Laws of England 4 Ed. are

relevant:

"931. EXECUTIVE ACTS. By virtue of the prerogative

the Sovereign is the supreme executive authority in the

state; and all executive acts are done in the Sovereign's

name by virtue of the prerogative or by virtue of

statutory powers conferred upon the Crown, or are done

by ministers of the Crown by virtue of statutory powers

conferred upon them in their capacity as ministers.

Executive acts are concerned either with the

administration of parliamentary enactments and the

subordinate legislation made under them, or with the

exercise of the discretionary authority which is placed"

in the Sovereign's hands by virtue of the common law

without any express parliamentary sanction or

supervision.

In neither of these branches of the executive may the

Sovereign act in person or upon arbitrary impulse. In

the former the Crown acts through its constitutional

officers and departments of state, and in the latter acts

through the medium of the customary officers and

departments upon the advice of the constitutional

ministers, such advice being given individually by the

heads of the various ministerial or political departments

in minor matters, or collectively through the Cabinet, in

more important matters
"

1083. THE GOVERNMENT. The executive powers vested

in the Sovereign are exercised in practice principally

by or through the various political officers who compose

the ministry or government, certain of whom are the heads

of the principal departments of state, and to a lesser

extent through other government offices, the staffs of

/....

which are composed of permanent members of the Civil

Service. The members of the ministry are appointed by

the Crown upon the nomination of the Prime Minister.

1086. POSITION OF THE SOVEREIGN. The Sovereign's

personal functions in the actual administration of the

executive are now restricted principally to attaching her

signature to various executive documents, the nature and

general policy of which have been previously determined

by individual ministers or the Cabinet. Nominally she

may dismiss the ministry, dissolve or prorogue Parliament

or withhold her assent to bills when she pleases, but in

practice the occasions upon which these prerogatives may

be exercised in a constitutional manner are sufficiently

clearly defined, since these powers form the

constitutional checks by which conformability in

executive and legislative matters to the wishes of the

House of Commons, and ultimately of the electorate, is

ensured. The true signficance and importance of the

Sovereign as a constitutional monarch are to be found in

the impartial exercise of these prerogatives, as also in

her position as permanent head of the executive, in whom

the various threads of the administration are centred,

and as the representative of the national power and

dignity, independent of and above the changes and

intrigues of party government."

With reference to the penultimate sentence above, the

following footnote (No.3 para.1086) appears in Halsbury:

"Thus, the power of dismissal at any moment enables the

Crown to prevent the adoption of measures distasteful to

the House of Commons, whilst the power of dissolving

Parliament, or of withholding assent to bills, may be

similarly exercised in upholding the wishes of the

electorate. Even in the exercise of these prerogatives

the modern practice is to accept the advice of the Prime

Minister of the day, and for the Sovereign's

discretionary action to retire into the background. The

power to summon a person to form a government is,

however, still not a matter on which the Sovereign

accepts advice."

/ ....

It will thus be seen that the relevant provisions of the

Constitution were largely based upon the relevant Constitutional

conventions of the United Kingdom. Indeed, section 76(2) of the

Constitution of Lesotho, in the proviso thereto, enacted that in

the exercise of the functions of the dissolution of Parliament in

certain cases, the appointment and removal of the Prime Minister

and the appointment of an acting Prime Minister without reference

to the Prime Minister, the King, while acting in "his own

deliberate judgment", was obliged nonetheless to act

" so far as may be, in accordance with any

constitutional conventions applicable to the exercise of

a similar function by Her Majesty in the United Kingdom."

With the advent of the Lesotho Order 1970, the areas in which

the King might act "in accordance with his own deliberate

judgment", much less those where he might act "in his absolute

discretion", were greatly if not almost completely reduced. With

the introduction of an Interim National Assembly, under the Lesotho

Order 1973, some of the King's Constitutional functions were

restored, such as the dissolution of the Assembly, but then only

acting "in accordance with the advice of the Prime Minister". The

Parliament Act 1983 restored still further some of the King's

functions, such as the appointment of Senators and of nominated

/ ....

members of the National Assembly but then "on the advice of the

Prime Minister": in particular the King's power under the

Constitution to dissolve or refuse to dissolve Parliament and to

appoint or remove the Prime Minister were restored.

With the advent of the Lesotho Order 1986 and the Lesotho

(No.2) Order 1986, and the repeal of the Parliament Act 1983, the

necessity for such functions fell away again. True it is that, for

the first time, the legislative power was vested in the King.

Apart for a brief period (30th January to 5th December, 1970) the

executive power had always since Independence, been vested in the

King: but that as I have . indicated above, did not affect his

position as a Constitutional Monarch. Further, his exercise of the

legislative power did not affect the situation: sections 9(2) and

10 of the Lesotho (No.2) Order 1986 left it in no doubt that such

power was to be exercised in accordance with the advice of the

Military Council. In brief, since Independence, the King's role

has remained throughout that of a Constitutional Monarch.

Appointment of Military Councillors

I turn then to the King's function in the appointment of

members of the Military Council. It proves convenient to here

repeat the provisions of Section 4 of the Lesotho (No.2) Order

/....

32

1986:

"4. (1) There is established a Council to be known

as the Military Council.

(2)
Subject to subsection (3) the Military

Council shall consist of,

(a ) the Commander of the Lesotho

Paramilitary Force, who shall be

Chairman; and

(b) such other members as may be

appointed by the King on the

advice of the chairman.

(3)
A member of the Military Council

shall be appointed from amongst regular officers of the

Lesotho Paramilitary Force."

The Lesotho Paramilitary Force was subsequently renamed the

Royal Lesotho Defence Force. It will be seen that there is a

distinction between the above provisions and the earlier provisions

of section 5 of the Lesotho Order 1986 which enacted that the

Military Council "shall consist of such officers as are for the

time being in charge of the Lesotho Paramilitary Force". While the

latter provisions are vague in the scope of the words "in charge",

which presumably is the reason they were replaced, nonetheless they

convey the meaning that the Lesotho Paramilitary Force, or rather

the group of officers in charge thereof, would determine the

constitution and membership of the Military Council and hence in

effect, that of the ruling body in the Government. That the

/....

Military Council was intended to be the ruling body cannot be in

doubt: it was, after all, the Lesotho Paramilitary Force which

had effected the coup d'etat and the provisions of section 4(ii)

of the Lesotho Order 1986, replaced by those of section 9(2) of the

Lesotho (No.2) Order 1986, provided that the King, in whom was

vested the executive authority,

"in the exercise of his functions under this Order or

any other law,
shall act in accordance with the

advice of the Military Council". (emphasis supplied)

In brief I cannot but see that the intention was that the King

should continue in his role as a Constitutional Monarch. There are

differences in the phraseology used in the legislation, to which

I referred earlier, that is, in the words "on the advice
",

"acting on the advice
", or "act in accordance with the

advice of the Military Council". Mr. Tampi submits that the

difference represents nothing more than somewhat erratic drafting,

and I am inclined to agree. I cannot see any essential difference

in the meaning of the formulas used. Had it been intended to

import a discretion, no doubt such phraseology as, e.g. "acting in

(after) consultation with the Military Council" (see e.g. section

17 (a) of the Lesotho Order 1990), could have been utilised.

Further, the provisions of section 9(2) of the Lesotho (No.2) Order

1986 make it quite clear that the King must at all times "act in

/ ....

34

accordance with the advice of the Military Council".

There is further difficulty with section 8 of the Order which

provides that

"The King may appoint such number of Ministers of State

as he may, on the advice of the Military Council,

consider necessary".

The combined use of the word "may" and the words "consider

necessary", undoubtedly import a discretion, but then the words "on

the advice of the Military Council" import no such discretion, and

there is again the overriding effect of the provisions of section

9(2). I had thought perhaps that the words "may
consider

necessary", relate solely to the number, rather than the identity

of the Ministers of State, in other words that the King does have

a discretion as to such number. But that interpretation is again

contrary to section 9(2), and I am driven to the conclusion that

the words "may
consider necessary", while they may connote

initial consultation as such, do not convey an ultimate discretion.

In any event the latter phraseology is not to be found in

section 4(2)(b), where it enacts that the Military Council consists

of the Chairman and,

"such other members as may be appointed by the King on

/ .....

35

the advice of the chairman."

The operative word there, is the word "may". There is much

written about the use of that word, for example in the legal

dictionaries, such as Strouds Judicial Dictionary 3 Ed., Words and

Phrases Legally Defined 2 Ed. , Butterworths Legal Dictionary and

Claasens Dictionary of Legal Words And Phrases (1975). In Stroud

op. cit. alone, over seven pages are devoted to sixty-five examples

of the varying use of the word, be it permissive, mandatory or

undetermined. The learned author of Craies on Statute Law 7 Ed.

observes at p.229 that the meaning of the words "shall" or "may",

"in statutes conferring a power is the subject of constant and

conflicting interpretation". In the Australian case of Johnson's

Tyne Foundry Pty., Ltd. v Shire of Maffra (4), Williams J. observed

at p.101:

" 'May' unlike 'shall', is not a mandatory but a

permissive word although it may acquire a mandatory

meaning from the context in which it is used, just as

'shall' which is a mandatory word may be deprived of the

obligatory force and become permissive in the context in

which it appears."

In the case of Re Baker, Nichols v Baker (5) Cotton L.J.

observed:

" 'May' never can mean MUST, so long as the English

language retains its meaning; but it gives a power, and

then it may be a question in what cases, where a judge

/....

36

has a power given him by the word 'may,' it becomes his

duty to exercise that power".

In the old case of R v Barlow (6) decided in 1693, the Court

observed:

"Where a statute directs the doing of a thing for the

sake of justice or the public good, the word may is the

same as the word shall; thus 23 Hen. 6 [Stat. (1444-5)

Hen. 6, c. 9 (repealed)] says, the sheriff may take bail;

this is construed, he shall; for he is compellable so to

do,"

Again in the case of Sheffield Corpn v Luxford & Morrell (7)

Talbot J. observed at pp.183/184:

" 'May' always means may. 'May' is a permissive or

enabling expression; but there are cases in which, for

various reasons, as soon as the person who is within the

statute is entrusted with the power it becomes his duty

to exercise it. One of those cases is where he is

applied to use the power which the Act gives him in order

to enforce the legal right of the applicant."

And in the leading case of Julius v Bishop of Oxford (8) Lord

Cairns observed at p.225 that,

"where a power is deposited with a public officer for

the purpose of being used for the benefit of persons who

are specifically pointed out, and with regard to whom a

definition is supplied by the legislature of the

conditions upon which they are entitled to call for its

exercise, that power ought to be exercised and the court

will require it to be exercised."

/....

37

and at p.222:

"The words 'it shall be lawful' are words making that

legal and possible which there would otherwise be no

right or authority to do. They confer a faculty or

power, and they do not of themselves do more than confer

a faculty or power. But there may be something in the

nature of the thing empowered to be done, something in

the object for which it is to be done, something in the

conditions under which it is to be done, something in the

title of the persons for whose benefit the power is to

be exercised, which may couple the power with a duty,

and make it the duty of the person in whom the power is

reposed to exercise that power when called upon to do

so. These words being, according to their natural

meaning, permissive or enabling words only, it lies upon

those who contend that an obligation exists to exercise

this power to show in the circumstances of the case

something which, according to the principles I have

mentioned, creates this obligation." (emphasis supplied)

The learned authors of Stroud op. cit. at p.1756 apparently

consider those dicta as equally applicable to the use of the word

"may". The above phrase, "the conditions under which it is to be

done", are relevant to the context in which the word "may" is used,

and as I see it, in the present case the aspect of whether or not

the power of appointment vested in the King amounted to a duty as

such, depends upon that context; see e.g. the case of Gunn v

Barclays Bank (9) at p.685. Apart from the aspect of context, to

say that the power of appointment in the present case was to be

exercised "for the sake of justice or the public good", or in

"order to enforce the legal right" of the appointee, or for the

'benefit of persons specifically pointed out ....", would be to

strain the natural meaning of those words. I turn then to the

/....

context for some assistance. In this respect the learned author

of Claasen's Legal Dictionary observes (at p.396):

"It is only by considering the general provisions of

the law in question and the purview of the whole

legislation on the subject that we can tell whether may

confers a discretionary power or imposes an obligtory

duty. No definite rule can be laid down; see R v

Dietrich," (10)

In the case of Re Neath and Brecon Railway (11) James L.J

observed at p.264 of the formula, "it shall be lawful",

"That is the usual courtesy of the legislature in

dealing with the judicature."

I take as a starting point therefore the fact that in the present

case we are dealing with exercise of a power by the Monarch

himself. The dictum of James L.J applies a fortiori therefore to

the present situation: the use of the word "may" perhaps

represents no more than a courtesy to His Majesty. That aspect is

in turn fortified by the fact that, as I have indicated, the King

is a Constitutional Monarch.

I observe that the word "may" is also used in section 6(2) (b)

of the Lesotho (No.2) Order 1986 in relation to the appointment of

Ministers, that is, in the words,

/....

39

"such other members as the King may, on the advice of

the Military Council, appoint."

It cannot be said that the use of the word "may" thereby

denotes a discretionary power: section 9(2) clearly indicates

otherwise. I can see no reason why practically the same formula

used in section 4(2)(b) should not then have the same effect.

The word "may" in sections 4(2)(b) and 6(2)(b) of the Order

is qualified by the ensuing words "on the advice of the Chairman",

and "on the advice of the Military Council", respectively. There

can be no difference in the words, "on the advice of", in section

6(2)(b) and the words, "act in accordance with the advice of", in

section 9(2): the latter provisions leave no doubt in the matter

and, as I indicated earlier, the words "on the advice of" in

section 6(2)(b) must be construed accordingly. So also must the

words, "on the advice of" in section 4(2)(b). The words "on the

advice of the chairman" can only mean, therefore, that the King is

obliged to act in accordance with the advice of the Chairman.

There is the further aspect that, as indicated earlier, the

provisions of section 4(ii) of the Lesotho Order 1986 and section

9(2) of the Lesotho (No.2) Order 1986, not to mention other

provisions in both Orders, clearly established that the Military

Council was effectively to be the ruling body, and but nominal

executive and legislative authority was to be conferred upon the

/....

King, as a Constitutional Monarch. Section 5 of the former Order

again indicated that the "officers for the time being in charge of

the Lesotho Paramilitary Force" would control their own destiny in

deciding upon the composition of the ruling Military Council. It

would then be completely anomalous that, in converting to the more

specific phraseology in the provisions of section 4 of the Lesotho

(No.2) Order 1986, the identity of the members of the Military

Council (except the Chairman), in accordance with the advice of

which Council he was obliged to act, should then be left to the

discretion of the King.

Clearly the discretion in the identity of the members of the

Council, all members of the Royal Lesotho Defence Force, must be

left to the Chairman, as Commander of that Force. I find therefore

that the respondents have discharged any onus of proof that may

exist in the matter, and that the use of the word "may" in this

case connoted no more than the indeterminate factor of the identity

of the five ordinary members of the Military Council, a matter

which was within the sole discretion of the Chairman.

The King's Advisory Role:

Mr. Browde submits that if such is the case, nonetheless the

King had a role to play in the appointment of Military Councillors,

/ .....

that is, in an advisory or consultative capacity. I agree. It

will be seen that under the legislation after Independence (and

indeed as Motlotlehi under the 1959 and 1965 Constitutions-see

Mokotso at p. 6 and p. 11) the King had the right to be consulted

and informed as to Government matters. In particular the

provisions of section 12 of the Office of King Order, 1970, read

as follows:

"12. The King shall have the right to be consulted

by the Prime Minister on all matters relating to the

Government of Lesotho and in the course of that

consultation to encourage and to warn. The Prime

Minister shall keep him fully informed concerning the

general conduct of the government of Lesotho and shall

furnish him with such information as he may request in

respect of any particular matter relating to the

Government of Lesotho."

After the coup d'etat of 1986, of course, there was no office

of Prime Minister. In the case of Central Bank of Lesotho v

Phoofolo (12) the Court of Appeal (per Mahomed J.A, Schutz P. and

Aaron J.A concurring) held at p.5 that the functions of the Prime

Minister had since the coup d'etat become vested in the King. In

view of the provisions of section 3(2) of the Lesotho (No.) Order

1986, the provisions of section 12 of the Office of King Order 1970

were then unworkable and did not apply. Nonetheless, the right to

consultation and information had, in 1986, been an established

procedure for over 27 years. In vesting the nominal executive and

/....

legislative authority in the King, the 1986 legislation implicitly

confirmed the King's role as a Constitutional monarch, and inherent

in that role, as will be seen, is the right to consultation and

information.

Mr. Browde submits that the King's role must amount to more

than that, as he put it, of "a rubber stamp". That submission is

echoed in the following extract from Professor de Smith's work

"Constitutional And Administrative Law", where the learned editors

Professor Harry Street & Rodney Brazier observe at pp.125/126:

"The principal convention of the British constitution

is that the Queen shall exercise her formal legal powers

only upon and in accordance with the advice of her

Ministers, save in a few exceptional situations. In

independent Commonwealth countries the powers of the

Governor-General, her personal representative, are

similarly restricted, except in so far as they may have

been enlarged or attentuated by the text of the

constitution.

This is not to say that the monarch must be a mere

cypher. As Bagehot wrote (Walter Bagehot, "The English

Constitution" (1963) p.lll) , she has 'the right to be

consulted, the right to encourage, the right to warn'.

He could have added that she also has the right to offer,

on her own initiative, suggestions and advice to her

Ministers even where she is obliged in the last resort

to accept the formal advice tendered to her.

To be more explicit, she has the conventional rights

to receive Cabinet papers and minutes, to be kept

adequately informed by the Prime Minister (with whom she

has regular weekly audiences) on matters of national

policy, to receive Foreign Office dispatches and

telegrams and other State papers, and to be notified of

proposed appointments and awards to be made in her name

so that she can express her views informally. She can

make such private comments as she thinks fit; she can

remonstrate and offer strong objections to a proposed

/....

course of action. How much attention is paid to her

views will depend upon the context and her personal

experience and stature. Any objection that she may raise

to the introduction of politically controversial

legislation to which the Cabinet is committed is unlikely

to be pressed or taken seriously, particularly if the

Government is not of a conservative complexion; the

monarch, aware of the monarchy's conservative image, is

obliged to use extreme tact. On the other hand, the

advice which is tendered to her as to non-political

appointments (for example, to archbishoprics) may wel1

be coloured by the monarch's private views, especially

if she is as familiar with the possible candidates as is

the Prime Minister and if she will subsequently have

personal contacts with the holder of the office. At this

level the monarch's influence may be considerable. More

generally, the length and range of her experience of

public affairs (the Queen has been on the throne since

1952), and her personal acquaintance with a large-number

of overseas dignitaries, may lend weight to suggestions

she chooses to offer."

The contents of p. 315 of the late Professor Owen Hood

Phillips' and Professor Paul Jackson's Constitutional And

Administrative Law 7 Ed. are also relevant. Quite obviously the

above-quoted extract from de Smith op. cit. can only be of general

application in Lesotho. Suffice it to say however, that I consider

that either expressly or impliedly there has always been vested in

the King, "the right to be consulted, the right to encourage, the

right to warn". That being the case, in the exercise of his

function in appointing or removing from office a Military

Councillor, on the advice of the Chairman, he must surely have the

right to be advised as to the reasons for the proposed measures and

indeed to make counter proposals in the matter. Ultimately

/ .....

however, the discretion is that of the Chairman, and the King "is

obliged in the last resort to accept the formal advice tendered"

to him. The question arises as to the nature and extent of the

consultation with the King in the present case. In this respect,

as I indicated earlier, the Court has before it the affidavit sworn

by His Majesty.

The King's Affidavit

The King's affidavit was sworn in London. Mr. Tampi indicated

that he had been served with a copy of the affidavit less than a

day before the hearing. The copy bore no attestation by a Notary

Public, so that Mr. Tampi came to Court prepared to argue that it

was inadmissible, under the provisions of section 13 of the

Authentication of Documents Proclamation, 1964. The original

affidavit however bears such attestation and the seal of a Notary

Public. Mr. Tampi had then no opportunity to place any authorities

before the Court in the matter of the Constitutional propriety of

the filing of the affidavit. He was thus contained to submitting

that such filing waswithout precedent. Mr. Browde counters that

the situation is without precedent. I observe that historically

there have been a number of instances of disagreement between a

Head of State and a Head of a Government, between a Monarch and a

Prime Minister, but I can find no precedent where the Courts were

/....

called upon to resolve the issues between them on the basis of

their sworn testimony. The filing of the affidavit places the

Court in difficulty. The following extract from a passage from

de Smith op. cit. at pp. 123/124 but begins to highlight such

difficulty:

"The Queen today remains a symbol of national identity,

a focal point of national loyalty, transcending partisan

rivalry and strenghtening social cohesion.

British coins and postage

stamps bear her image; the Queen personifies the State

and the nation, their history and continuity. The

Government is Her Majesty's Government; government is

carried on in the Queen's name; sovereignty is attributed

to the Queen in Parliament;
the courts are the

Queen's courts. The Queen is pre-eminently a 'dignified'

(Bagehot op. cit. p.61) element in the British

constitution. She is also
an exemplar

of family virtue, a personage to whom deference is paid

by all in public life in a society where habits of

deference are diminishing. She embodies the hereditary

principle at a time when entitlement to the exercise of

authority or the enjoyment of a preferred status by

reason of birth is increasingly questioned. She has the

misfortune to be required to live in a glare of publicity

and to have reposed in her expectations which no ordinary

mortal can hope to fulfil. The smallest indiscretion or

verbal lapse may be the subject of adverse comment to

which she will be unable to reply on her own behalf. She

must, therefore, endeavour so to comport herself as to

give offence to nobody; not only must she never do or say

the wrong thing, but she must always do and say the right

thing, irrespective of her private inclinations."

In England, in keeping with the onerous duties of Office, even

before the development of the common law (Halsbury op. cit.

para.889 Note 1), the concept of the royal prerogative had emerged.

/....

46

William Blackstone in his "Commentaries On The Laws Of England",

Vol.1 (Of The Rights Of Persons) (1765) observed at p.239:

"By the word prerogative we usually understand that

special pre-eminence which the King hath over and above

all other persons, and out of the ordinary course of the

common law, in right of his regal dignity. It signifies,

in its etymology (from prae and rogo) something that is

required or demanded before, or in preference to all

others."

The prerogative is capable of various classifications, such

as 'personal¹ and 'political', the latter adhering to "the Crown"

rather than the person of the Sovereign. Without recourse to any

form of classification, the prerogative includes the time-honoured

aspects that, the King's person is inviolable, enjoying supreme:

sovereignty and pre-eminence, typified by such expressions as "the

King never dies" (there being no interregnum, the Kingdom

transferring by demise to the Heir to the Throne), "the King can

do no wrong", "the King is the fountain of justice" , and "the King

is the fountain of honour".

Blackstone op. cit. observes at pp.253/254:

"... the king is not bound by any act of parliament,

unless he be named therein by special and particular

words. The most general words that can be devised ("any

person or persons, bodies politic, or corporate, &c.")

affect not him in the least, if they may tend to restrain

or diminish any of his rights or interests. For it would

be of most mischievous consequence to the public if the

/ .....

strength of the executive power were liable to be

curtailed without it's own express consent, by

constructions and implications of the subject."

and at p.257:

"ANOTHER capacity, in which the king is

considered in domestic affairs, is as the fountain of

justice and general conservator of the peace of the

kingdom. By the fountain of justice the law does not

mean the author or original, but only the distributor.

Justice is not derived from the king, as from his free

gift; but he is the steward of the public, to dispense

it to whom it is due. He is not the spring, but the

reservoir; from whence right and equity are conducted,

by a thousand chanels, to every individual. The original

power of judicature, by the fundamental principles of

society, is lodged in the society at large: but as it

would be impracticable to render complete justice to

every individual, by the people in their collective

capacity, therefore every nation has committed that power

to certain select magistrates, who with more ease and

expedition can hear and determine complaints; and in

England this authority has immemorially been exercised

by the king or his substitutes. He therefore has alone

the right of erecting courts of judicature: for, though

the constitution of the kingdom had entrusted him with

the whole executive power of the laws, it is impossible,

as well as improper, that he should personally carry into

execution this great and extensive trust: it is

consequently necessary, that courts should be erected,

to assist him in executing this power; and equally

necessary, that, if erected, they should be erected by

his authority. And hence it is, that all jurisdictions

of courts are either mediately or immediately derived

from the crown, their proceedings run generally in the

king's name, they pass under his seal, and are executed

by his officers."

and at pp.258/259:

"IN criminal proceedings, or prosecutions for

offences, it would still be a higher absurdity, if the

king personally sate in judgment; because in regard to

these he appears in another capacity, that of prosecutor.

All offences are either against the king's peace, or his

crown and dignity; and are so laid in every indictment.

For, though in their consequences they generally seem

(except in the case of treason and a very few others) to

/ .....

be rather offences against the kingdom than the king;

yet, as the public, which is an invisible body, has

delegated all it's power and rights, with regard to the

execution of the laws, to one visible magistrate, all

affronts to that power, and breaches of those rights, are

immediately offences against him, to whom they are so

delegated by all public offences and breaches of the

peace, being the person injured in the eye of the law."

And again at p.260:

"A CONSEQUENCE of this prerogative is the

legal ubiquity of the king. His majesty, in the eye of

the law, is always present in all his courts, though he

cannot personally distribute justice. His judges are the

mirror by which the king's image is reflected. It is the

regal office, and not the royal person, that is always

present in court, always ready to undertake prosecutions,

or pronounce judgment, for the benefit and protection of

the subject. And from this ubiquity it follows, that

the king can never be nonsuit; for a nonsuit is the

desertion of the suit or action by the non-appearance of

the plaintiff in court. For the same reason also, in the

forms of legal proceedings, the king is not said to

appear by his attorney, as other men do; for he always

appears in contemplation of law in his own proper

person."

Examples of the prerogative are to be found in case law. In

the very old land case (1561) of William v Berkley (13) the report

of the majority judgment of the Common Bench reads at pp.370/373:

"... inasmuch as all justice, tranquillity, and repose

is derived from the King, as the fountain thereof, the

law shews him special favour in all his business and

things, as being the cause and origin thereof. And the

law of this land is divided into three parts, Viz. common

law, customs, and statutes, in each of which the King has

his prerogatives and exceptions. For in the common law,

the grant of every common person is taken most strongly

against himself, and most favourably towards the grantee;

but the King's grant is taken most strongly against the

grantee, and most favourably for the King, although the

/.....

thing which he grants came to the King by purchase or

descent.

"
latches .... shall not hurt the King, but he

may take .... when he will
"

"
if title appears for the King upon pleading

between other parties, the Court ex officio shall adjudge

for the King, although he is not party to the issue. All

which cases shew that in the common law the King has pre-

eminence and prerogative above all other persons, and

that he is not so strictly bound by the law as others

are. And as the common law cannot bind him, so cannot

private customs..

the King brought a quare impedit in the King's

Bench, and it was there objected that the said Court

should not have power to hold plea thereof contrary to

the statute, but it was awarded to be maintenable, for

the King is not precisely named in the Act, and therefore

he shall not be restrained.

the statute of 32 H. 8. cap. 2. of

Prescription or Limitation does not restrain the King,

because he is not mentioned in the Act. From which cases

it appears that the common law, customs, and statutes,

which don't make express mention of the King, exempt the

King from all restraint, and leave him at liberty.."

In qualifying the prerogative that "the King is the fountain

of justice", the report of the 17th century case (1607) of

Prohibitions del Roy (14) is instructive. It reads in part as

follows at pp.63/6:

".... the King in his own person cannot adjudge any

case, either criminal,* as treason, felony, &c. or betwixt

party and party, concerning his inheritance, chattels,

or goods, &c. but this ought to be determined and always

judgments are given, ideo consideration est per Curiam,

so that the Court gives the judgment; and the King hath

his Court, viz. in the Upper House of Parliament, in

which he with his Lords is the supreme Judge over all

/ .....

other Judges; for if error be in the Common Pleas, that

may be reversed in the King's Bench; and if the Court of

King's Bench err, that may be reversed in the Upper House

of Parliament, by the King, with the assent of the Lords

Spiritual and Temporal, without the Commons: and in this

respect the King is called the Chief Justice, 20 H. 7.

7 a. by Brudnell: and it appears in our books, that the

King may sit in the Star-Chamber; but this was to consult

with the justices, upon certain questions proposed to

them, and not in judicio: so in the King's Bench he may

sit, but the Court gives the judgment: and it is

commonly said in our books, that the King is always

present in Court in the judgment of law; and upon this

he cannot be nonsuit: but the judgments are always given

per Curiam;

And the Judges informed the King, that no King after

the Conquest assumed to himself to give any judgment in

any cause whatsoever, which concerned the administration

of justice within this realm, but these were solely

determined in the Courts of Justice: and the King cannot

arrest any man, as the book is in 1 H. 7. 4. for the

party cannot have remedy against the King; so if the King

give any judgment, what remedy can the party have. Vide

39 Ed. 3. 14. one who had a judgment reversed before the

Council of State; it was held utterly void for that it

was not a place where judgment may be reversed. Vide 1

H. 7. 4. Hussey Chief Justice, who was attorney to Ed.4

reports that Sir John Markham, Chief Justice, said to

King Ed.4 that the King cannot arrest a man for suspicion

of treason or felony, as others of his lieges may; for

that if it be a wrong to the party grieved, he can have

no remedy:" (emphasis supplied)

The situation is summarised by J. Chitty in his celebrated

work "A Treatise On The Law Of The Prerogatives Of The Crown" which

was published in 1820. Chapter XII thereof is entituled "Of the

Prerogative with respect to judicial Remedies and Proceedings at

the Suit of the Crown". The following extracts appear in Chapter

XII at p.234/245:

/ .....

"THOUGH justice flows from the King, as its fountain,

he cannot administer it personally, or authorize any

deviation from the laws. The first principles of equity

forbid that any one should be judge in his own cause;

which may be one reason that the constitution has, by an

indiscriminate dictate, deprived the Crown of the power

of personally interfering with the administration of

justice. If this were not the case, the prerogative,

instead of being in fact subservient to, would be above

the laws, and the property of the subject would be

defenceless

Extraordinary remedies are assigned to the King,

because, as Lord Coke observes, 'Thesaurus Regis est

fundawentum belli et firmamentum pacis.'

In the first place, though his subjects are, in many

instances, under the necessity of suing in particular

courts, the King has the undoubted privilege of suing in

any court he pleases. He may bring a Quare Impedit, or

writ of right, or of escheat, in B.R. , and may have a

Quare Impedit in B.R., though there have been a recovery

in C.B. The Crown possesses also the power of causing

suits in other courts to be removed into the Court of

Exchequer, where the revenue is concerned in the event

of the proceeding, or the action touches the profit of

the King, however remotely, and though the King be not

a party thereto ...

Wherever also the King's title be clearly elicited,

even in actions between third parties, the Court may, ex-

officio, give judgment for the Crown thereon. And the

Attorney-General, or other proper officer of the Crown,

is always made a party in any cause in Chancery, &c. in

which the King's rights are or may be called in question.

The King is also supposed to be always present in

court , and, therefore, cannot be nonsuit, though the

Attorney-General may enter a non vult prosequi; and his

Majesty is not said to appear by his Attorney.

The general rule is, that the King may waive his

prerogative remedies, and adopt such as are assigned to

his subjects. He may maintain the usual common law

actions, as trespass quare clausum fregit, or for taking

his goods. The only exception seems to be in the case

of actions, which suppose an eviction or disseisin, as

an assize, or, it seems, an action of ejectment. The

/ .....

King cannot maintain such actions, they being

inconsistent with his royal dignity, and contradictory

to the fiction of law, that the King cannot be

dispossessed of property once vested in him. But the

King may maintain a quare impedit, which supposes the

claimant's possession, and might also maintain a writ of

ravishment of ward. And though the King chuse a common

law action, he may, by virtue of the prerogative we have

just noticed, commence it in any court."

Chapter XIV of Chitty's great work deals with privileges and

incapacities of the King. The following passage appears at

pp.377/378:

"The privileges and prerogative rights of the Crown

in judicial remedies and proceedings, and various

peculiarities respecting the Crown lands, have been

already mentioned. We may here add, as disabilities

arising from the royal dignity, that the King cannot

personally execute any office, judicial or ministerial,

or arrest in person. For the same reason, and also on

the ground that even the King shall not give evidence in

his own cause, it is clear that his Majesty's testimony

is not admissible in cases of treason or felony. Whether

or not his Majesty's certificate, under his sign manual

or the great seal, as to facts within his knowledge, can

be admitted as evidence in a civil cause between subject

and subject, may admit of some doubt. Rolle, in his

Abridgment (2 Roll. Abr., Trials, Testimonies, H) says,

that "it seems that the King cannot be a witness in a

cause by his letters under his sign manual." No reason

is, however, assigned, or authority cited, for the

proposition; and Rolle admits, that the case of Lord

Abignye v. Lord Clifton (15), in Chancery is to the

contrary. In that case, King James's certificate, under

his sign manual, of promises made by Lord Clifton, was

allowed upon the hearing as a proof and exception for so

much. So, in 10 Jac. 1. the King's certificate was

admitted and acted upon as proof, and clearly the King's

testimonial, under the great seal, was antiently allowed

in the case of an essoin de servitio regis."

/ .....

A footnote (d) in explanation of the latter point reads in

part:

"The author has been favoured with a sight of a MS. of

Ld. Chancellor Finch, in which Rolle's opinion is

decidedly contradicted, and it is clearly laid down,

"that in a civil Court, between party and party, the King

may testify his knowledge."

The case of Abignye v Clifton (15) referred to above had been

decided two centuries earlier, in 1611. The report, in Chancery,

is very brief. it reads thus:

"Roy his certificat

In the case between the Lord Abignye plaintiff, and

the Lord Clifton defendant, in the Chancery, concerning

a promise supposed by the plaintiff to be made to him of

assurance of land upon the marriage of his lady, being

daughter and heir apparent to the Lord Clifton, and his

lady. The King, by his letters under his signet manuel,

certified to the late Lord Chancellor, and also to this,

the manner and substance of the promise, as it was made

to His Majesty: in regard whereof, His Majesty gave to

the Lord Abignye 18000 pounds in lieu of 1000 per annum

in land which he had promised, which certificate was

allowed upon the hearing for a proof without exception

for so much."

The reference by Chitty to "10 Jac. 1" is to the case of Sir

Henry Lea and Henry Lea's Case (16) decided in the Common Pleas but

a year later in 1612. In that case Sir Henry Lea had made a

promise to the King that in the event of his kinsman Henry Lea not

/ ....

advancing his claim over lands held by Sir Henry, he, Sir Henry,

would pay his kinsman £200 per annum. Upon failure to keep such

promise, Henry Lea sued in the Court of Requests where, in the face

of Sir Henry's denial of the promise, Henry Lea filed "a

certificate made by the King's Majestie, that he made such a

promise unto him". The Court of Requests thereupon made a decree,

"which certificate was mentioned in the body of the said decree."

Sir Henry failed to obey the decree and was committed to prison.

He sought and was granted a writ of habeas corpus. On the return

to the writ in the Court of Common Pleas the Court, in the face of

a valid return to the writ, declined to order his release from

prison. The report then reads at p.121:

"and Montague (King's Sergeant) prayed, that

because it appeared that the said Henry Lea had

remedy by way of action upon the case at the

common law, upon the said promise, that this

Court would grant a prohibition in this case

unto the Court of Requests, and deliver the

party from his imprisonment. But the Court

said, that they would advise of the case,

because they never had heard of the like case.

But Cook Chief Justice advised Sir Henry Lea

to agree the matter betwixt him, and his

kinsman Henry Lea;
"

I cannot but see that the reference there to "the like case"

was a reference to a case in which the King's certificate had been

admitted as proof. Faced with such certificate, it was a counsel

of wisdom for Sir Henry to settle the case,

/ ....

And there the matter rests for nigh on three hundred years.

There is no more recent authority in Halsbury, op. cit. either in

the 3rd (1954) or 4th (1974) Edition (and see also the English And

Empire Digest Vol. II 521/522. Indeed the learned editors in both

Editions of Halsbury, in paragraph 537 Vol.7 and paragraph 959

Vol .8 respectively, would seem to favour Rolle's view in the

matter. It will be seen further, that in both of the above cases

no more than a certificate was put in. When it comes to an

affidavit, or viva voce evidence, there is no more than a statement

contained in a manuscript written by the Lord Chancellor at the-time.

I do not say that the description of the various forms of the

prerogative, set out above, necessarily apply in Lesotho. Mr.

Tampi submits that there can be no question of convention, that the

Kingship is an Office created by an Imperial enactment in 1966 and

is bound by statute. Indeed the 1966 Constitution, as I indicated

earlier, expressly applied particular Constitutional conventions

of the United Kingdom. Nonetheless, I consider that a form of

statutory prerogative was created in 1966, and continued thereafter

in the various enactments. The foremost expression of such

prerogative is the pre-eminence of the King as Head of State. The

concept that "the King can do no wrong" prevails, exemplified by

/....

the King's personal criminal and civil immunity before the Courts.

The King is regarded as the fountain of justice: all Judges were

appointed by the King; all criminal prosecutions are in his name:

all civil summons are issued in his name, and indeed had the

present application been instituted by way of summons, rather than

a notice of motion, the action would then have been commenced in

the King's name. It is no mere courtesy therefore to describe the

Courts as His Majesty's Courts and I have always regarded myself

as one of His Majesty's Judges.

The Court then finds itself in an impossible position.

Further, under Rule 8(14) of the High Court Rules, the Court may,

order the matter to continue as a trial and for the parties to

adduce viva voce evidence, adding further to the dilemma. The

dilemma is that perhaps experienced by the learned Chief Justice

and Judges in the case of Sir Henry Lea (16), of endeavouring to

do justice between the parties, of doing justice to the concept

which holds that all men are equal before the law, when the

principal witness to the action is himself regarded as "the

fountain of justice" and in the eyes of the law "can do no wrong".

The King is not a party to this matter. On the face of it,

he has sworn an affidavit in a civil matter between two, or rather

four of his subjects. It can be said therefore that this is not

/.....

57

the King's "own cause". On the other hand, in view of the wider

Constitutional and jurisprudential issues in this case, it can be

said to be very much the King's "own cause". Further, the subjects

involved are not ordinary subjects. An ex-Cabinet Minister is the

applicant in an action against the Head of Government, a Cabinet

Minister and the Attorney-General. Therein lies a further anomaly.

The Attorney-General having been joined, he can only be regarded,

under section 3(1) of the Government Proceedings And Contracts Act

1965 as a nominal respondent, that is, as representative of "His

Majesty in His Government of Lesotho" (see Mokotso (1) at p.96).

The position is therefore that His Majesty's affidavit has been

filed in an action against His Majesty in His Government of

Lesotho.

There is a further complication again. It is highlighted by

the following passage contained at p.316 of 0. Hood Phillips op.

cit. :

"The exchange of views between Sovereign and Prime

Minister on any matter is strictly confidential between

them. It would be improper for the Sovereign herself or

for any member of the Royal Household to give public

expression to her opinions on political matters.

(Conversely the Prime Minister does not answer questions

in the House of Commons relating to her relations with

the monarch)."

That passage can be of but general guidance in Lesotho.

/....

Nonetheless, for obvious reasons, it constitutes a counsel of

wisdom. In the present case the King's affidavit discloses the

communications between him and the first respondent over the period

of 20th to 22nd February, 1990. I respectfully consider that it

would not be in the national interest for this Court to disclose

such communications.

Fortunately, I am in the position that this case can be

resolved in any event, without recourse to those communications.

Quite clearly the action of the R.L.D.F. in forcibly removing the

four Colonels from their office premises presented the King to some

extent with a fait accompli. The advice of the first respondent

in the matter could then well be regarded as an attempt to

regularize an irregular situation. I could well imagine some

temporizing by the King in asserting "the right to be consulted,

the right to encourage, the right to warn". To what extent those

rights should be pressed, is not for my judgment but necessarily

that of His Majesty. Only he could judge the pressure of the

situation, and I would imagine that with the actions of the

R.L.D.F. in the matter, with half of the ruling body, the Military

Council, in detention, the matter was, in the least, of national

urgency. Ultimately, sooner or later, the King was obliged to

accept the Chairman's advice. Ultimately, failure to do so could

only result in a constitutional impasse.

/ .....

59

The Nature of a Coup d' Etat:

I turn then to consider the nature of a coup d'etat. The

matter was considered in Mokotso (1) and it is convenient to repeat

extracts therefrom. Professor Hans Kelsen in his work General

Theory of Law & State (Harvard University Press, 1949, translation

Wedberg) observed thus at pp.117/119 (see Mokotso (1) at

p.107/108):

"The Principle of Legitimacy

The validity of legal norms may be limited in time,

and it is important to notice that the end as well as the

beginning of this validity is determined only by the

order to which they belong. They remain valid as long

as they have not been invalidated in the way which the

legal order itself determines. This is the principle of

legitimacy.

This principle, however, holds only under certain

conditions. It fails to hold in the case of a

revolution, this word understood in the most general

sense, so that it also covers the so-called coup d'Etat.

A revolution, in this wide sense, occurs whenever the

legal order of a community is nullified and replaced by

a new order in an illegitimate way, that is in a way not

prescribed by the first order itself. It is in this

context irrelevant whether or not this replacement is

effected through a violent uprising against those

individuals who so far have been the "legitimate" organs

competent to create and amend the legal order. It is

equally irrelevant whether the replacement is effected

through a movement emanating from the mass of the people,

or through action from those in government positions.

From a juristic point of view, the decisive criterion of

a revolution is that the order in force is overthrown and

replaced by a new order in a way which the former had not

itself anticipated. Usually, the new men whom a

/ ....

revolution brings to power annul only the constitution

and certain laws of paramount political significance,

putting other norms in their place. A great part of the

old legal order "remains" valid also within the frame of

the new order. But the phrase "they remain valid." does

not given an adequate description of the phenomenon. It

is only the contents of these norms that remain the same,

not the reason of their validity. They are no longer

valid by virtue of having been created in the way the old

constitution prescribed. That constitution is no longer

in force; it is replaced by a new constitution which is

not the result of a constitutional alteration of the

former. If laws which were introduced under the old

constitution "continue to be valid" under the new

constitution, this is possible only because validity has

expressly or tacitly been vested in them by the new

constitution". The phenomenon is a case of reception

(similar to the reception of Roman law). The new order

"received," i.e., adopts, norms from the older order;

this means that the new order gives validity to (puts

into force) norms which have the same content as norms

of the old order. "Reception" is an abbreviated

procedure of law-creation. The laws which, in the

ordinary inaccurate parlance, continue to be valid are,

from a juristic viewpoint, new laws whose import

coincides with that of the old . laws. They are not

identical with the old laws, because the reason for their

validity is different. The reason for their validity is

the new, not the old, constitution, and between the two

continuity holds neither from the point of view of the

one nor from that of the other. Thus, it is never the

constitution merely but always the entire legal order

that is changed by a revolution.

This shows that all norms of the old order have been

deprived of their validity by revolution and according

to the principle of legitimacy. And they have been so

deprived not only de facto but also de jure. No jurist

would maintain that even after a sucessful revolution the

old constitution and the laws based thereupon remain in

force, on the ground that they have not been nullified

in a manner anticipated by the old order itself. Every

jurist will presume that the old order-to which no

political reality any longer corresponds - has ceased to

be valid, and that all norms, which are valid within the

new order, receive their validity exclusively from the

new constitution. It follows that, from this juristic

point of view, the norms of the old order can no longer

be recognized as valid norms."

/....

61

In the present case the applicant, as quoted earlier, submits

that there cannot be "a coup d'etat by affidavit". Throughout

submissions it was emphasized by Mr. Browde that the first

respondent had not "seized power from anyone, so there could be no

question of a coup d'etat. It seems to me that there is a basic

underlying misconception in those submissions. Undoubtedly the

usual form of a coup d'etat is an illegal physical seizure of

power, resulting sometimes in bloodshed. Not infrequently however-

it takes the form of a "bloodless coup", but even there physical

seizure of power is involved. But as Professor Kelsen observes in

the passages above quoted, such is not necessarily the case. He

points out that a revolution or coup d'etat

"occurs whenever the legal order of a community is

nullified and replaced by a new order in an illegitimate

way, that is in a way not prescribed by the first order

itself. It is in this context irrelevant whether or not

this replacement is effected through a violent uprising

against those individuals who so far have been the

"legitimate" organs competent to create and amend the

legal order. It is equally irrelevant whether the

replacement is effected through a movement emanating from

the mass of the people, or through action from those in

government positions. From a juristic point of view,

the decisive criterion of a revolution is that the order

in force is overthrown and replaced by a new order in a

way which the former had not itself anticipated."

(emphasis supplied)

Professor Kelsen also observes op. cit. at p.220:

/....

"A victorious revolution or a successful coup d'etat does

not destroy the identity of the legal order which it

changes. The order established by revolution or coup

d'etat has to be considered as a modification of the old

order, not as a new order, if this order is valid for the

same territory. " (emphasis supplied)

In the case of The State v Dosso (17) the majority of the Full

Bench of the Supreme Court of Pakistan observed (per Sir Muhammad

Munir C.J.) at p.184:

"It sometimes happens, however, that a Constitution and

the national legal order under it is disrupted by an

abrupt political change not within the contemplation of

the Constitution. Any such change is called a

revolution, and its legal effect is not only the

destrution of the existing Constitution but also the

validity of the national Legal Order." (emphasis

supplied)

That passage was quoted by Lord Reid in the case of

Madzimbamuto v Lardner-Burke & Anor. (3) at p.574, without express

disapproval or approval, though the learned Law Lord did go on to

say that the Judicial Committee saw "no reason to disagree with the

results" of the judgment in Dosso (17). In any event, Sir Muhammad

Munir C.J. in Dosso (17) continued thus:

"A revolution is generally associated with public tumult,

mutiny, violence and bloodshed but from a juristic point

of view the method by which and the persons by whom a

revolution is brought about is wholly immaterial. The

change may be attended by violence or it may be perfectly

/....

peaceful. It may take the form of a coup d'etat by a

political adventurer or it may be effected by persons

already in public positions. Destruction of the

constitutional structure may be prompted by a highly

patriotic impulse or by the most sordid of ends. For the

purposes of the doctrine here explained a change is, in

law a revolution if it annuls the Constitution and the

annulment is effective." (emphasis supplied)

In the case of Uganda v Commissioner of Prisons, Ex Parte

Matovu (18) the High Court of Uganda was faced with a coup d'etat

by the Prime Minister, who suspended the Constitution, detained

five Ministers, formed a Council consisting of Ministers and

members of the army and police (which Council was subsequently

referred to as a 'Cabinet') and then on the advice of the Cabinet

removed from office the President, in whom, as the Constituionad

Head of State, was vested the executive authority of the State, the

Prime Minister, assuming such authority. The Vice-President was

also removed from office. Although the Constitution was initially

suspended (and subsequently replaced), nonetheless the "fabric of

society" was preserved, in that the Constitutional provisions

affecting the National Assembly, the Judiciary, The Army, Police

and Prisons Services, Federal, Municipal and District Authorities,

and all the Schedules to the Constitution, were left undisturbed.

To some extent the facts of the present case are on all fours with

those of Matovu (19). In that case the High Court (Sir Udo Udoma

C.J, Sheridan and Jeffreys Jones JJ.) held at p.539 that the above

events constituted a "victorious revolution".

/ ....

In Mokotso (1) I had occasion to consider the Nigerian case

of Lakanmi & Ola v The Attorney-General (West) (19) and it proves

convenient to repeat what I there said of that case at pp.147/149:

"Suffice it to say that a revolt took place within

the armed forces on 15th January, 1966 which the General

Officer Commanding managed to contain. Nonetheless civil

war threatened. On 16th January the Acting President

informed the nation that he had "been advised by the

(Federal) Council of Ministers that they had come to the

unanimous decision voluntarily to hand over the

administration of the country to the Armed Forces of the

Republic with immediate effect". In a further speech the

General Officer Commanding stated that "the government

of the Federation having ceased to function, the Nigerian

armed forces have been invited to form an interim

military government for the purposes of maintaining law

and order and of maintaining essential services", which

invitation had been accepted. Thereafter the necessity

ended when the rebellious troops surrendered. The

Military Government continued to rule the country under

the existing Constitution suitably amended.

The plaintiffs in Lakanmi (19) had had their

property attached by order of an investigative statutory

tribunal, on grounds of corruption. The particular

statutory provisions had been passed by the Military

Government. The plaintiffs' action challenged the

validity of the particular order, the enabling

legislation and subsequent (1968) validating legislation,

on the grounds that such were in conflict with the

fundamental human rights and freedoms enshrined in the

Constitution.

The Supreme Court (per Ademola C.J.) held in effect

that the doctrine of necessity was implied in the terms

of the Constitution as,

"No constitution can anticipate all the forms

of phenomena which may beset a nation."

/....

Professor Nwabueze observes, op. cit.

(Constitutionalism in the Emergent States, 1973) at

p.203;

"The application of the doctrine of necessity

the and-over received, however, only abrief treatment.

The court affirmed the view that the grant of power to

the armed forces took place by virtue of the doctrine,

and was therefore in accordance with the Constitution

which for this purpose includes the law of necessity.

It rejected the contention that the hand-over could not

have been under the Constitution, and that it was a

revolution which destroyed the Constitution. In the view

of the court, the event could not have been a . a

revolution, because there was no question of seizure of

power by the section of the armed forces which started

the rebellion; the rebellion had indeed aborted, and it

was not to the insurgents that power was handed over."

Applying the doctrine of necessity, the Supreme

Court held that the power of the Military Government to

amend the Constitution (by means of legislation

inconsistent therewith), went no further than that

properly arising from the necessity which brought the

Government to power, and therefore the particular

legislation was void. There had obviously been an

unconstitutional abdication of executive and legislative

sovereignty by the Government on 16th January, 1966. The

use of the word "interim" by the General Officer

Commanding conveyed no more than that the Military

Government would be the sole government for an

unspecified period, which had not terminated: indeed a

further military coup d'etat had taken place on 29th

July, 1966. The necessity which brought the Military

Government to power had long since passed. Professor

Nwabueze accordingly comments that "clearly the view

taken by the court is untenable". Professor de Smith's

work, op. cit. (Constitutional and Administrative Law 3

Ed. 1977), at pp.68/69n contains the comment that the

Supreme Court's "analysis of the facts may be regarded

as courageous but far-fetched". For my part I

respectfully agree. I cannot see that, where there has

been an unconstitutional complete abdication of

/ ....

sovereignty by the lawful Government, other than a

revolution or coup d'etat is involved, whatever be the

description or the effective term of the office of the

new regime."

Those observations must aply a fortiori to the situation where

power is not abdicated, but is taken. Clearly the judgment of the

Supreme Court in Lakanmi (20) was affected by the fact tht there

had been no "seizure" of power by the armed forces. Similarly in

the present case the applicant contends that power has not been

"seized" from anyone. That however, as the above quoted

authorities indicate, is not the criterion. Even if it were the

criterion, that would not, as will be seen, advance the applicant's

claim.

The events of the 19th February, 1990, involving the physical

arrest and detention of half of the membership of the Military

Council by the R.L.D.F., did not, as I have already said,

constitute at law a removal from office. The provisions of section

41 of the Interpretation Act 1977, by virtue of which the powers

of any "council or similar body" were not affected by "any vacancy

in the membership thereof," were not then applicable - nor did the

provisions of section 11 of the Lesotho Order 1990 become

applicable. Section 42 of that Act provides that the function of

"a body or number of persons consisting of or being not less than

three," may be exercised "by a majority of those persons". The

/....

number of Military Councillors was not prescribed at the time: the

provisions of section 4(2)(b) of the Lesotho (No.2) Order 1966

indicated however that the Council consisted of not less than three

persons, including the Chairman thereof. It would seem therefore

that, despite the Chairman's casting as well as deliberative vote,

under the provisions of section 42 of the Act, the Military Council

could not statutorily operate in the absence of three of its

members: even, if all three remaining members were agreed on any

point (obviating the need for any casting vote), their votes would

nonetheless not represent the majority opinion of the Council.

Quite obviously therefore, it was necessary to regularize the

situation with regard to the tenure of office of the three absent

members. Nonetheless, while constitutional difficulties had

arisen, which could be resolved by the lawful termination of the

appointment of the said members, I cannot see, as earlier said,

that a coup d'etat was involved in the physical removal of such

members.

But that was on the 19th February, and it was the events of

that day which constituted the catalyst for the events of 20th

February. Those events assumed a different character. On that day

the first respondent broadcast a statement over Radio Lesotho

anouncing inter alia that the King's powers, "for the time being",

would be vested in the Chairman, "with the assistance" of the

/....

Military Council, the Council of Ministers to "continue to function

as usual". It was emphasised that the King remained the Head of

State, "and we shall execute the duties of State on his behalf".

There followed, inter alia, assurances of adherence to

international obligations, part of the usual format, if I may say

so, in the assumption of power. There followed thereafter what I

consider to be an exhortation, if not a direction to all services

to continue to function, namely,

"We re-affirm our commitment to the independence of the

judiciary in the discharge of its obligations to the

nation. Similarly, other public services will continue

to be performed."

Nowhere in the first respondent's statement, earlier

reproduced, is there any mention of "seizure" of power or the words

"coup d'etat". This has been stressed by the applicant. In the

course of the argument it was pointed out that the late Prime

Minister Chief Leabua Jonathan had openly stated in 1970 that he

had "seized power". It must be rare indeed that he who does seize

power will use that expression, and it must be equally rare that

he would describe his actions as a "coup d'etat". There is

therefore no significance whatever in the fact that such

expressions were not used on this occasion at any time, that is,

/.....

until these proceedings were commenced. In any event, it matters

little what description the parties give to their actions. What

matters is their classification in law, and here I observe that the

statement made by the first respondent was plainly

unconstitutional, that is, it was in conflict with the provisions

of the Lesotho (No.2) Order 1986, which contained the national

Constitutional dispensation.

Mr. Browde submitted at one stage, as I have said, that the

King's discretion in the matter of advice rendered by the Military

Council went further than mere consultation, and that he had the

right to refuse to follow such advice. With that submission I did

not agree. The position nonetheless is that the applicant

maintains that the King's power was executive in every sense, but

yet he takes the position that no coup d'etat even took place as

no power was "seized" from anyone. I regard that position as

untenable. I am satisfied that the King's role as a Constitutional

Monarch was no more than advisory. Nonetheless, I have stressed

the extent of the role played by the King, his pre-eminence of

person and the importance of his advice in the matter. Not alone

must his general function under the Lesotho (No.2) Order 1986 be

considered, but also all of his functions under a host of statutory

enactments. I cannot see that the act of the Head of Government

in assuming such powers, those of the Head of State, could possibly

/.....

be described as other than a coup d'etat. If it constituted a

"victorious revolution", in Matovu (18), for the Head of Government

to assume the powers of a Constitutional President, then I cannot

see how it would constitute other than a coup d'etat for the Head

of Government to assume the powers of a Constitutional Monarch.

There followed on 23rd February the Lesotho Order 1990, which

took effect on 19th February. The departure from the Lesotho (No.2)

Order 1986 is immediately apparent in the Preamble to the former

Order. Whereas the Lesotho Order 1986, in the Preamble thereto

(see Mokotso (1) at pp.34/35), is expressed to be made by the King,

and was made and signed by the King, the Lesotho Order 1990 is

expressed to be made by the first respondent. The Order was made

and signed by him on 23rd February, in his capacity as Chairman of

the Military Council and Council of Ministers. The Order repealed

the Lesotho (No.2) Order 1986, providing that the existing laws

were to be construed with the necessary modification, any law

inconsistent with the Order to be inoperative to the extent of such

inconsistency. It vested the executive and legislative authority

not in the King, but in the Military Council, providing in

particular that the legislation would be signed by the Chairman of

the Military Council. The Military Council was empowered to

appoint Ministers and Assistant Ministers, to assign portfolios,

and indeed was expressly empowered to remove any Minister or

/....

Assistant Minister from office. Apart from the Chairman, the

Military Council was to consist of five members to be appointed by

the Chairman, and who could be removed by him "without assigning

any reason", measures which in effect gave the first respondent the

powers of a Head of Government.

The Order provided that the King "shall continue to be Head

of State". In this respect section 17 of the Order provided that

where any existing law conferred any function on the "Prime

Minister" that function was to be exercised by the Chairman "acting

in consultation with the Military Council", a phrase which clearly

vested a discretion in the Chairman. As to the exercise of any

function by the King, "whether acting on the advice of any other

person or authority or otherwise", such function was to be

exercised by the Military Council .

Clearly there was no constitutional validity in the assumption

of power on 20th February, nor in the repeal of Lesotho (No. 2)

Order 1986 and the making of the Lesotho Order 1990 on 23rd

February, such legislation being given retrospective effect to the

19th February. Neither for that matter was there any

constitutional validity in the acts of the Prime Minister on 30th

January, 1970, nor in those of the King and the newly formed

Military Council on 20th January, 1986. Those acts however

/....

subsequently achieved validity ab initio. Clearly the events of

20th February, 1990, and the making of the Lesotho Order 1990

constituted the replacement of an existing legal order by a new

order, as Professor Kelsen put it, "in an illegitimate way, that

is in a way not prescribed by the first order itself". The Lesotho

(No.2) Order 1986, containing the constitutional dispensation and

the national legal order under it, as Sir Muhammad Munir C.J. put

it, was "disrupted by an abrupt political change not within the

contemplation of the Constitution". Again, as the learned Chief

Justice put it, "a change is, in law a revolution if it annuls the

Constitution and the annulment is effective". Such annulment is

effective if the new legal order, or rather the regime which

created the new legal order, is firmly established and effective.

As will be seen, I am satisfied that such is the present case. In

brief I cannot see that anything other than a coup d'etat took

place on 20th February, 1990, such aspect being but confirmed by

the legislation of 23rd February. Mr. Browde submits that such

legislation but seeks to "legitimise an unlawful act". But I

respectfully observe that that approach begs the question. The

removal of the applicant and the making of the Lesotho Order 1990

was clearly unconstitutional. The question thereafter is not one

of administrative law, of the illegal exercise of powers within the

framework of an existing legal order; it is a jurisprudential one

as to whether a new legal order was substituted altogether. The

/.....

73

question is whether the powers exercised have gained legitimacy by

the success of the coup d'etat.

The Efficacy of the Change

Mr. Browde concedes that if there has been a coup d'etat, then

the applicant's argument "falls at the first hurdle". That, I am

satisfied, is the case. Mr. Browde concedes that the present

Government is effecive. It is I consider a notorious fact that it

is firmly established, so much so that the applicant's argument all

along has been that there had been a mere "re-shuffle". It is a

notorious fact that the events of 19th February were hardly

noticed, except perhaps by a few residents of Maseru. Again the

applicant says that the vast majority of the people of Lesotho are

unaware that any coup took place. I cannot agree. The first

respondent's statements were broadcast to the nation. While the

public by and large may have been unaware, on 19th February, of

what transpired on that date, the events of that date and in

particular of 20th February quickly became notorious facts. In

brief, the effect of the Lesotho Order 1990 is clearly a notorious

fact.

Mr. Browde conceds that there is no question of any Government

in opposition, nor indeed any question of an implied mandate from

/ .....

the King: Her Majesty the Queen acts as Regent. I cannot but see

therefore that the Government is firmly established. The

Government has governed effectively since the coup d'etat, that

is, in all three limbs of government, the executive, the

legislative and the judicial. Under section 16 of the Lesotho

Order 1990 it undertook all the liabilities and obligations of the

previous Government. It has administered the country through its

control, inter alios, of the Public Service, the Royal Lesotho

Mounted Police and the Royal Lesotho Defence Force.

As will be seen, the legislative function has been effectively

exercised in main legislation, not to mention subordinate

legislation.

As for the judicial function, the Lesotho Order 1990 provided

for the continuance in effect of existing laws, and thereby the

Courts structure and the offices thereunder. The Court of Appeal

has conducted a Session since the coup d'etat. The High Court,

Subordinate Courts, Central and Local Courts, continue to function.

As I see it therefore, all members of the Judiciary

administratively, if not judicially (apart from this judgment),

recognize that they hold office under the present Government. The

Government continues to serve the process of the Courts and to

execute their orders. As I observed in Mokotso (1) at p.266:

/ .....

"The rule of law is firmly established. The ultimate

safeguard of a free society, the writ of habeas corpus,

though seldom sought is nonetheless freely available to

all."

In my judgment therefore the present Government took over and

has effectively administered the judicial function since the coup

d'etat. The ultimate test of the efficacy of the change is

acceptance by the people. It is a notorious fact that the

Government's administration is effective, in that the. vast

majority, if not all of the people of Lesotho are behaving, by and

large, in conformity therewith. The effective date of the Lesotho

Order 1990 is 19th February 1990. I hold therefore that the

present Government is the lawful Government of the Kingdom of

Lesotho and that its legislation has been legitimated ah initio,

that is, with effect from 19th February, 1990.

The Popularity of the Change

In Mokotso (1) at pp. 191/193 I observed that the popularity

of the change was not necessarily the criterion: it of courses

ensures rapid acceptance by the people, in whom, lies the ultimate

mandate. In any event, I consider it a notorious fact that the new

/....

Government quickly achieved popularity. Undoubtedly a first step

in that direction was the first respondent's statement on 20th

Febuary that

"I, and my colleagues in the Militay Council, are of the

view that the programme of democratisation must go ahead

and we wish to ask the nation to work towards fulfilling

this promise by June, 1992."

Undoubtedly also the introduction of the National Constituent

Assembly Order 1990 (No.4 of 1990) on 14th May, 1990, less than

three months after the change of Government, helped in this

respect. The introduction of the Order was certainly in keeping

with the terms of the Preamble to the Lesotho Order 1990, which

contained the implied promise of the enactment of "a new

Constitution designed to suit the interests of the Basotho Nation

in conformity with democratic principles", a promise which was not

to be found, at least in such terms, in any legislation for the

past 20 years. Perhaps the Parliament Act 1983 (see Mokotso (1)

at pp.32/34) had held some such promise, but it was quickly

frustrated by inequitable electoral regulations. In any event,

the National Constituent Assembly Order repealed and replaced the

Lesotho Order 1990. It also however established the National

Constituent Assembly, the Order providing that the Assembly,

/.....

"(a) shall consider and make recommendations to the

Military Council regarding a suitable

Constitution for Lesotho; and

(b) may consider and make recommendations to the

Military Council regarding such

matters,including the national budget, as are

referred to it by the Military Council."

The Constituent Assembly, which has been sitting since 28th

June, has approximately 110 members and is of a widely widely

representative character, consisting of the Council of Ministers;

Assistant Ministers; the Principal and Ward Chiefs; 20

"politicians" (so described); 20 members elected from development

councils; 18 members nominated by the Military Council, 10. due to

their representative or specialised qualifications and 8 members

of the Army or police; and 10 elected Urban Councillors.

The Constituent Assembly with its President, Deputy President,

Secretary and Staff, functions like any Parliament, particularly

in view of function (b) above. It shall stand dissolved after two

years, unless sooner dissolved by the Military Council, provided

that the life of the Assembly may be extended by the Military

Council for 6 months at a time, but ultimately for no greater

/....

period than 12 months. Its limited life indicates its main

purpose. In this respect, the exercise of the main function of the

Assembly is proceeeding apace: its Notice Papers, Order Papers and

Minutes, which are widely distributed, all indicate that the

Assembly has at the suggestion of the first respondent, taken the

1966 Independence Constitution as its working model and is

approximately half-way through a consideration of that

Constitution, section by section.

The debates of the Constituent Assembly are a matter of

notoriety. The Assembly has awakened, or rather sharpened the

longing of the people for a return to full democratic Government.

They have accepted and placed their trust in the Government's

administration and this Court can but only endorse the peoples'

mandate in the matter.

The Court's Finding

Mr. Tampi submits that the first respondent's functions

approximate to those of a Prime Minister. He submits that a

Cabinet Minister holds office at pleasure and his appointment may

be terminated by a Prime Minister at any time without any good

reason. That submission is borne out by the following passages in

de Smith op. cit. at pp.176/177:

/ .....

Military Council. Section 13(2) of the Lesotho Order, 1990 enabled

the Chairman to sign Orders on behalf of the Military Council:

there is no corresponding provision in section 8 of the Order. The

first respondent's action is not therefore saved by the provisions

of the Order.

It is however saved by the fact that the successful coup

d'etat introduced a new legal order. While that order did not

destroy the identity of the old legal order, it did destroy the

structure thereof, such as, for example, the Military Council, and

the Council of Ministers, unless restored by new legislation or

preserved under the adaptation of existing law. In this respect,

the first respondent's statement on 20th February that the Council

of Ministers would "continue to function as usual", can only be

regarded as an indication that a Council of Ministers (by

whomsoever constitued) would continue to operate: the content of

the subsequent legislation is the deciding factor and the Lesotho

Order 1990, having repealed the Lesotho (No.2) Order 1986,

established in particular a Council of Ministers.

In the Ghanaian case of Sallah v The Attorney-General (20)

(see Mokotso (1) at pp.118/121) Aroin J. considered that as a result

of a military coup d'etat the old legal order had been destroyed,

and that therefore the existing offices were the creation of the

/ ....

military regime's Proclamation after staging the coup, and any

subsequent legislation. Professor Nwabueze op. cit. observes at

p. 231 that the coup d'etat

"destroyed the authority of the 1960 Constitution and

with it all the laws and offices made or established

under it, replacing it with a new one". (emphasis

supplied)

Indeed, upon the introduction of the National Constituent

Assembly Order 1990, section 39(1) thereof repealed the Lesotho

Order 1990. The offices created under the latter Order would have

fallen away, were they not saved by the provisions of section

39(2)(a) of the former Order which reads:

"(2) Notwithstanding subsection (1),

(a) any person who, immediately before the

commencement of this Order, held office under

the enactment repealed by subsection (1) shall

continue to hold office as if appointed or

designated under this Order;"

There was no such provision to be found in the Lesotho Order

1990, and the offices created by the Lesotho (No.2) Order 1986 fell

away upon the coup d'etat and the repeal of that Order. It will

be seen that under section 18(2) of the Lesotho Order 1990 the

appointment of the first respondent as Chairman of the Military

Council and Council of Ministers was expressly preserved. Indeed,

/....

as I observed earlier, it is a notorious fact that, apart from the

first respondent, an entire Military Council and Council of

Ministers were sworn into office on 22nd Febuary and thereafter.

In brief therefore, the applicant's office fell away with the coup

d'etat. The real effect of the first respondent's letter of 22nd

February therefore was but to politely inform the applicant of such

termination.

The application is accordingly dismissed.

Dated at Maseru this 6th day of November, 1990.

B.P. CULLINAN

CHIEF JUSTICE

Makenete v Lekhanya and Others (CIV/APN/74/90) (CIV/APN/74/90) [1990] LSHC 1 (06 November 1990);

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Makenete v Lekhanya and Others (CIV/APN/74/90) (CIV/APN/74/90) [1990] LSHC 1 (06 November 1990);

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