CIV/APN/145/85

IN THE
HIGH COURT OF LESOTHO 1 the Application of

BENNET
MAKALO KHAKETLA Applicant

v

THE
HONOURABLE PRIME MINISTER 1st Respondent

CHIEF
ELECTORAL OFFICER 2nd Respondent

THE
ATTORNEY GENERAL 3rd Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr Justice D.S. Levy on the 24th day of July, 1985

The
Applicant who is the leader of a registered political party known as
the Marematlou Freedom Party has applied for an order declaring

1. That
   the National Assembly (conduct of elections) Regulations of 1985 are
   null and void for want of comp-1 lance with the requirements
   of
   Section 27(1) of the Interpretation Act No 19 of 1977,

   
   

2. That
   Section 10(3) and 11 of the Electoral Amendment Act of 1984 are null
   and void on the grounds that their pro­visions conflict
   with the
   provisions of Section 2(n) of the Human Rights Act

   
   

No 24 of 1983,

3. That
   the man commanding the majority and confidence of the sixty elected
   members

   
   

of the National Assembly shall be appointed Prime Minister and that
he shall advise His Majesty the King on the appointment of
20
nominated members of the National Assembly.

4. That
   the Prime Minister in office immediately prior to and during the
   elections shall not

   
   

be
entitled to advise the King on such appoint­ment unless he shall
have been re-appointed as the man commanding the majority
and con
fidence of the 60 members of the National Assembly elected during
such elections

2

The
Applicant has cited as Respondents, The Honou­rable The Prime
Minister in his capacity as Minister of Constitutional Affairs,
The
Chief Electoral Officer and the Attorney General as representative of
the government in terms of the Government Proceedings
Act of 1965

The
background to this application is not specifically referred to in
these proceedings but it is a matter of common knowledge that
a
Delimitation Com­mission under the Chairmanship of his Lordship,
the Chief Justice of Lesotho and with two puisne judges
of the High
Court of Lesotho as members, has recently completed its task and it
is anticipated that elections will shortly be held
for the election
of a National Assembly

The
Interim National Assembly which was establish shed under Section 4 of
Lesotho Order of 1973 consisting of the 22 Principal Chiefs
and Ward
Chiefs and 71 nomi­nated members appointed by the King was
dissolved on 31st December, 1984

The
Interim National Assembly has governed this country since 1973 and
has already been judicially recognised as being in complete

administrative and legis­lative control of the country It has
also been judi­cially recognised that the orderly process
of
govern­ment has continued uninterrupted since 1973. Accordingly
the acts of this government must not be denied validity
and it must
be recognised as the legitimate government of the State and accorded
the fullest recognition as the de jure government
of Lesotho

This is
fully in accordance with the principles of Public International Law
and Constitutional Law as to which (See Baron v Ayre
N.O. and Others
1968(2) 284 (R.A.D ).

I turn
now to deal with the relief sought by the Applicant in the prayers
described above

3

1. The
   National Assembly (conduct of election) Regulations 1985 were made
   by the First Respondent under the powers vested in him
   by Section
   111 of the Electoral Act No 23 of 1968 and were promulgated on 8th
   January 1985.

   
   

This
section reads as follows

"111(1) The minister may by notice in the gazette make
regulations providing for such matters as in this Act are permitted

to be prescribed, and generally for the better carrying out of the
objects and purposes of this Act

(2) The regulations may provide penalties for the contravention
thereof or failure to comply therewith, not exceeding the pena­lty

mentioned in Section 101

(3) The Minister may also where no form is prescribed in this Act
prescribe by notice in the gazette the form to be used in the

car-ring out of the provisions of this Act.

No provision of the Elections Regulations as promulgated in the
gazette has on a careful reading revealed to me any questionable
or
prejudicial provision

which
might arouse the resentment of a would be candidate for election or a
voter Nor, is it fair to say, has any argument been
addressed to me
raising such a conten­tion and certainly the application is
silent on this score My reading of the regulations
informs me that
these regulations contain exactly the provisions one would expect in
very full and detailed form for the orderly
conduct of elections and
for the protection of voters and the candidates, and are totally
intra vires Section 111 of the Electoral
Act 1968.

However, the validity of these regulations has been challenged on the
ground that there was a failure to comply with Section 27(1)
of the
Interpretation Act No. 19 of 1977 which reads as follows

4

"27(1) all rules (except rules of Court) regulations and by­laws
shall be laid on the table of the Assembly. at its next
sitting after
publication in the gazette."

Affidavits
by two former members of the Interim National Assembly have been
filed by the Applicant in support of his application
wherein both
deponents state that these Regulations were not tabled in terms of
Section 27(1) of Act No 19 of 1977 and are therefore
invalid, says
applicant. It is not denied by the Respon­dents that the
requlations in fact have not been so tabled as yet

However,
the plain reading of Section 27(1) of the Interpretation Act is that
the regulations are to be tabled at the next sitting
of the National
Assembly and then only for the purpose of amendment by resolution of
the National Assembly Until the next sitting
of the National Assembly
and until an amending resolution is passed the regulations as
promulgated remain valid and in force

It has
been argued by the Applicant's counsel that on a proper
interpretation of Section 27(1) the regula­tions will only come

into force when they have been tabled. I cannot agree with this. The
regulations as promulgated are valid regulations of immediate
force
The necessity for tabling the Regulations does not amount to a
suspension of the regulations but is only the usual requirement
of
Parliaments to assist them in their watch-dog functions in respect of
the exercise by Ministers of their powers to legislate
by regulation.
The power of Parliament to interfere with the regulations by
resolution is a power of amendment only and not a power
to suspend
the operations of the regulations.

I
respectfully agree with the judgment of the Cape Provincial Division
that Parliamentary control to a limited degree is secured
through
legislative insistence on the tabling of Regulations framed by a
Minister, though failure to table would not invalidate

5

such an
instrument (See R. v. Daniels 1936 C.P.D. 331),

In the
absence of any requirement of the enabling Act of an affirmative
resolution of the National Assembly, it is not possible
to regard
such a provision as suspending the operation of the regulations.

Section
3(1) of the Interpretation Act of 1977 defined 'Act' to mean inter
alia any subsidiary legis­lation made under any Act
enacted by
the Assembly, that is, the Interim National Assembly and "subsidiary
legis­lation" is defined inter alia
as any regulation made
under and by virtue of any Act and having legislative effect.

For the
purposes of the Interpretation Act 1977 regulations made by a
Minister under the powers vested in him by any statute are
included
in the definition of an "Act"

Section
16 of the Interpretation Act 1977 provides that every Act shall

1. be
   published in the gazette.

   
   

2. come
   into operation on the expiration of the day next preceding its
   publica­tion unless otherwise provided.

   
   

In
accordance with the above provisions, these regulations came into
force at the end of the day of 8th January, 1985 which was
the date
of their publication in the gazette Nor is there anything in their
contents to indicate any suspension of their operation.

If there
were any doubt at all about the validity of the above reasoning, then
this would be dispelled by a reference to Section
27(2) of the
Interpretation Act which contains the saving provision that an
amending resolution of the Assembly shall be without
prejudice to
anything done thereunder Thus the Interpretation Act itself
contemplates that some act or acts may have been done
pursuant to the
regulations before tabling or laying before the Assembly and before
any

6

resolution
for their amendment is passed. This Section protects the validity of
such acts notwithstanding the amendment of the enabling
regulation
This is a clear recognition by the the Statute of the coming into
force of the regulation before tabling and is a direct
indi­cation
that the regulations are not to be regarded as suspended pending
tabling. Noe will the regulation receive any imprimatur
from having
been laid before the Assembly (See Institute of Patent Rights v
Lockwood 1891 a.C 347 approved in R v Hildick-Smith
1924 T.P.D. 69 at
95/6.

I am
satisfied that there is no justification for granting the relief
sought under prayer (a)

Section
10(3) and 11 of the Electoral Amendment Act 10 of 1984 provide as
follows

"10(3). Every candidate for election for any constituency shall
be proposed by at least five hundred persons enrolled on the

electors' list for the constituency.

11. Section 27 of the Principal Act is amended by deleting the words
"two hundred Rand" and by substituting therefore
the
following "One thou­sand Maloti" "

The effect of Section 11 is to increase the deposit required of
candidates for election from R200 to M1.000.00

Applicant
alleges that this legislation violates the provisions of Section 2(n)
of the Human Rights Act of 1983 which provides that
individuals shall
have the right to participate either directly or through freely
chosen representatives in the government of the
country Applicant
alleges that Section 25 of the Electoral Act has been turned by these
amendments into an obstacle to the right
to participate freely either
directly or indirectly through freely chosen representative in the
government of Lesotho and are accordingly
in conflict with Section 2I
(n) of the Human Rights Act.

7

It is a
fundamental principle of Constitutional Law that, however unjust,
arbitrary or inconvenient any legislation may be, it must
be given
its full effect. It is not the province of the Court to scan its
wisdom or policy and the Court must take the statute
as it finds it.

Indeed
the absence of any attack in this appli­cation on the
reasonableness of this legislation is an implied acceptance of
this
principle by the applicant.

The
applicant, however, founds his application for relief on this score
on the ground that the Human Rights Act has entrenched the
right of
an individual and the duty of the State to protect those rights as
defined in that Act to the extent that subsequent legislation
may not
deny or reduce the rights so entrenched.

But I can
find nothing in the Human Rights Act which makes it any less liable
to amendment or repeal than any other legislation
of the Assembly and
certainly there can be no doubt that the general expressions of the
duties owed by the State to its citizens
as contained in the Human
Rights Act must inevitably yield to the ex­press provisions of
subsequent legislation.

Indeed
the Human Rights Acts itself envisages the prospect of subsequent
inroads in the rights of individuals in its provisions
contained in
Section 3 which reads as follows

"Rights shall be subject to conditions previously laid down by
law and shall only be encroached upon on such grounds and in

accordance with such procedures as are established by law."

This
Section, as I read it, contemplates the amendment of or inroads into
the rights created by the Human Rights Act by subsequent
legislation.

Argument
has been addressed to me on the justiciability of the provisions of
this Act at the

8

instance
of an aggrieved individual It has been said with some force that the
Act confirms or creates no rights or reciprocal obligations

justiciable at law of the instance of an aggrieved individual.
However, in view of my finding as set out above I do not find it

necessary to embark on this enquiry.

I,
therefore, find that no ground has been shown to exist to justify the
relief sought in Prayer

(b) which is accordingly refused.

(c) & (d) Since Prayer (d) is merely the corollary of Prayer c
they are properly considered together.

The gist
of this complaint is that if the present Prime Minister is to be
called upon by the King to nominate 20 members of the
National
Assembly before he is shown in subsequent elections to have retained
the leadership of the majority of the 60 elected
members, then by his
nomination of 20 political supporters the Prime Minister will thereby
be enabled substantially to influence
the composition of the National
Assembly and so entrench himself as the leader of the Assembly

Section 5
of the Parliament Act 5 of 1983 provides that the National Assembly
shall consist of

1. 60
   members elected in accordance with the Elections Act 1968 and

   
   

2. Such
   nominated members as may be appointed under Section 7

   
   

Section 7
reads as follows

"The King may, on the advice of the Prime Minister, appoint as
members of National Assembly such persons not exceeding 20
in number
as He considers desirable in the public interest in order to enhance
the representative character of the Assembly or
to obtain the service
as a member of the Assembly, of any person who, by reason of his
special qualification, would be of special
value as such member"

Having
regard to the discretionary power vested in the King in regard to the
appointment of nominated members

9

it will
be seen that the National Assembly will consist of not less than 60
and not more than 80 members depending upon the number
of members
that the King acting on the advice of the Prime Minister may appoint

As I have
already pointed out, the Interim National Assembly was dissolved on
31st December, 1984, but the Prime Minister and his
Ministers
continue in their office and continue inthe administration of the
country notwithstanding the dissolution of Parliament.

It
scarcely needs to be said that the Prime Minister who holds his
appointment from the King does not vacate his office on the
dissolution of Parliament nor do any other Ministers of State forfeit
their office by reason only of the dissolution of Parliament
They and
the Prime Minister remain in office until they are replaced by the
King

Section
35 of the Parliament Act provides that there shall be a Prime
Minister who shall be appointed by the King and that the King
shall
appoint the other Ministers of State acting in accordance with the
advice of the Prime Minister Section 35(4) further provides
that the
King may remove the Prime Minister from office if at any time between
the holding of a general election to the Assembly
and the date on
which the Assembly first meets thereafter, the King considers that in
con­sequence of the changes in the membership
of the Assembly
resulting from that election, the Prime Minis­ter will no longer
be the leader of the political party or coalition
of political
parties that will command the support of a majority of the members of
the Assembly.

Section
35(5) provides that the office of the Prime Minister shall become
vacant if

(d) he
ceased to be a member of the Assembly otherwise than of reason of
dissolution of Parliament.

10

It should
be observed that the repeal of Lesotho

Order
1973 which was heretofor the constitution of Lesotho does not affect
appointments made under that

Order and
Section 43 of the Parliament Act expressly preserves such
appointment.

in
Truncated Form Section 43 of the Parliament Act reads as follows

"43(1)
The Lesotho Order 1973 is hereby repealed.

(2) Not
withstanding the repeal effected by Section 1,

2. .

   
   

3. Any
   orders, directions, appointments and other acts lawfully made under
   the Order repealed by this Act inforce immediately before
   the coming
   into force of this Act shall be deemed

   
   

to have
been made under the cor­responding provisions of this Act and
shall continue to have effect until revoked."

It is
apparent, therefore, that there are two major aspects of the
appointment of the Prime Minister –

1) He is appointed by the King and only the King may revoke that
appointment

2) He remains in office as Prime Minister with his Cabinet
notwithstanding the dissolution of Parliament

here is
then only one person who may advise the King on the appointment of
nominated members of the National Assembly and that is
the present
Prime Minister the First Respondant, who retains that authority until
he is removed from office by the King who may
consider that he will
no longer command the support of a majority of the members of the
National Assembly Such Assembly must include
its nominated members
who by Section 5 of the Parliament Act, are equal in all respects to
the elected members, and whose number,
added to those of the elected
members, constitute the National Assembly for all purposes including
the right to vote on a motion
of no confidence in the government.

11

There
seems no reason also why the King should not have regard to the
political affiliation, if they have any, of the nominated
members, in
considering whether the Prime Minister still commands the support of
a majority of the members of the Assembly, even
though such members
were nominated, no doubt, for reason of their personal talents and
not for their political support of the Prime
Minister

Having
said this, I would nevertheless wish to add that it is a fundamental
principle of Constitutional Law that the King must appoint
as Prime
Minister the leader of the party or the coalition enjoying the
confidence of the National Assembly since it is a rule
of responsible
government that the government must en­joy the support of the
Assembly no matter how constituted And if the
King is to make any
appointments to the Assembly it is the hallmark of responsible
government that he acts on the advice of his
Ministers whose ultimate
res­ponsibility it is. (See Schierhout v. Union Government 1925
A.D 332

These are
constitutional conventions which in casu have been enshrined in the
Parliament Act 1983. But it is a matter of considerable
doubt whether
the Court would intervene to enforce such a duty on the King or on
his Prime Minister in advising him or otherwise
intervene in the
determination of the leader of the National Assembly

It is the
King's prerogative which vests in him the right to reach his own
decision as to whom to summon to act as Prime Minister
in the event
of the office falling vacant, or in his consideration of the question
whether the present Prime Minister will after
the election no longer
command the leadership and confidence of the National Assembly. So
for example, it is a matter of common
experience that a
constitutional authority such as the King of Lesotho may consider
that one person may be the leader of the coalition
commanding the
majority of votes and so appoint him Prime Minister, but the House
may at its very next

12

sitting
show him to have been wrong by passing a resolution of no confidence
in the government formed by him. In other words, it
is the King's
decision whom he is to appoint as Prime Minister, and whose advise he
is to take into consideration on all aspects
of the constitution of
Parliament including the appointment of nominated members of the
National Assembly.

With
equal force, it can be said that the time for making such
appointments is a matter for the decision of the King acting on the

advice of his Prime Minister and this Court cannot direct Him nor
should it direct Him on any aspect of such appointment save in
regard
to the validity of the nomination of such members in accordance with
the provisions of Section 18(1){d) of the Parliament
Act

The
embodiment of the King's prerogative in the Parliament Act re-affirms
the view I take, that is, that it is essentially a matter
for the
King's discretion and that no court may interfere with the exercise
of that discretion.

I have
been urged to consider that a state of emergency exists in this
country and that having regard to the exigencies of the situation,
I
should not hesi­tate to interpose the authority of the Court and
offer a direction to the King by way of a declaration in
regard to
the relief sought I am unable to accept either that there is such a
state of emergency or that there is anything happening
in this
country with which the orderly government which is everywhere evident
will be unable to cope or that such a situation would
in any way
enlarge the jurisdiction of this Court or change any of the
fundamental principles of Constitutional Law which I must
apply and
which I hope I have correctly enunciated

The
relief sough in prayers (c) and (d) is also refused and the
application is dismissed.

13

I have
been urged to make a special order as to costs because it is said,
and I so accept it, that Applicant was motivated in bringing
this
application by his high sense of duty to the State and by his concern
for the rights and liberties of the individual as enshrined
in the
Human Rights Act,I see no reason nevertheless to depart from the
ordinary principle that costs should follow the event and
I order the
Applicant to pay the Respondents' costs of this application.

(Sgd by)
D.S. LEVY,

ACTING
JUDGE

24th
July, 1985

For
Applicant Mr. Maqutu

For
Respondent Mr. Tampi.