Constitutional Law – Locus standi in judicio of a political party to institute a constitutional application in respect of the appointment of Judges of the High Court – When is a decision of the Judicial Service Commission made in the absence of any member valid – Interpretation of section 132(10) of Constitution and rule 5(2) of the JSC Rules

Intersection between s 20 and s66 (4) of the Lesotho Constitution, whether a civil society organisation entitled to participate in the selection of members of the Independent Electoral Commission.  Held that it was not.

Constitutional Law- Discrimination- whether the two categories of Secretaries had the same status- Executive Secretaries being permanent and pensionable staff- Ministerial secretaries being contract staff whose contracts are terminable by the termination of a Minister’s position or regime change- whether differential treatment comes to this Court with a sense of Constitutional invalidity- the test is identification of objectively determinable characteristics of the difference in conditions of service.

Constitution of Lesotho 1993 - Supremacy of – under its section 2 – Lesotho is a dualist state under international law. Any treaty, protocol or any political inter partes agreement in order to be enforceable in Lesotho must be consistent with the provisions of the Constitution of Lesotho – Noble motives are not relevant in considering enactment, a treaty, protocol or inter partes agreement cannot be elevated to a status of law without emasculating the authority and supremacy of the Constitution.

Where political leaders sign a Memorandum of understanding (MOU) without enactment of such by parliament of Lesotho, such MOU cannot be elevated to a status of law.  It rests solely on good faith of the parties to the agreement.

Where Clause 10 of MOU signed by a Representative of Government of Lesotho and a Leader of the Opposition has a salutary effect of restraining or hamstringing the powers and discretion of the Director of Public Prosecutions (DPP) under Section 99 (1) (a) and (b) of the Constitution to institute criminal proceedings against any person, such clause 10 of the MOU – its noble motive to facilitate the ongoing reform process in Lesotho notwithstanding – it must pass the muster of consistency as provided by Sections 2 (The Supremacy of the Constitution clause)  and 99 of the Constitution.

All International Instruments are founded on good faith and honesty.  Courts cannot, while noting their essential importance, enforce good faith as if it is a law.  Courts are Courts of law and not of equity or political expediency.  It would fail to make a judicial sense to declare clause 10 (inelegantly drafted as it is) as being consistent with the stated provisions of the Constitution.  Coined by a French jurist Montesquieu “The Spirit of the Law” in the 18th Century, the doctrine of Separation of Powers restrains or insulates the Court of law from entering the “turf” of state policy or influencing matters of importance such as the ongoing Reform process so vital to the peace and stability of our Kingdom.  This Court’s decision should not be interpreted as “breaking” or dislocating the reform process now on going in Lesotho.

As a unitary state, all three main organs of state – Legislature, Executive and Judiciary must operate in unison and never at cross-purposes. Finally, the Court held as follows:

1. The Applicants had a direct and substantial interest in the matter and ought to have been joined and consequently the relief for their intervention is granted;
2. The MOU is not a SADC Agreement or Treaty with Lesotho and international law is not applicable over it;
3. Assuming that the MOU was a Treaty, it would not spontaneously create enforceable rights and obligations in a dualistic Lesotho where this could only be so upon the domestication of any instrument of international law through an Act of Parliament;
4. Clause 10 of the MOU, remains unconstitutional as it has already pronounced itself in the previous consolidated cases since it undermines the powers of the DPP under Section 99 of the Constitution, Section 1 (1) of same which makes Lesotho a sovereign democratic State and Section 2 which renders the Constitution to be the supreme law of the Kingdom.  

Constitutional law – Application for interdict, restraint, issuance of declaratory others, review, mandamus and specific performance and other reliefs – Application being filed on urgent ex parte basis – Applicants having lumped together all reliefs sought in one Constitutional motion application in total disregard of the Constitution of Lesotho and the Constitutional Litigation Rules – Jurisdiction of the Constitutional Court in such instance. – Exhaustion of local remedies discussed – Respondents having raised several points of law/points in limine – The effect of upholding of those points.

Summary: Constitutional Law:  Applicant a commissioned officer at the level of Colonel in the Lesotho Defence Force-  Applicant was seconded to the National Intelligent Agency as its Director General, on a three year contract terminable on three months’ written notice-  The Prime Minister terminating the contract without observing the notice period stipulated in the contract, and without affording the applicant pre-termination hearing-  Applicant challenging termination of contract on the basis of rationality and legality-   Held  that the Prime Minister’s decision to terminate the contract without observing the procedural rules of natural justice  breached the principle of legality and the Rule of Law, and is, therefore unconstitutional-   Held further that applicant is entitled to salary and benefits for three months’ notice period.

Summary:

Constitutional law- Human rights- Right to a fair trial- delay in prosecuting the accused-Withholding witness statements from the accused- Applicant’s application based on these grounds- Applicable principles re-stated and applied- The timing of lodging an application for permanent stay of prosecution-Applicant launching the application after he had pleaded and the trial at the discharge stage- Even though it is desirable to launch the application prior to plea, where the accused was unrepresented when the trial commenced, it should not be held against him that he delayed to apply for a permanent stay of prosecution- In terms of s.22(2) of the Constitution where breach of a right is found, the court may issue directives, make orders and issue processes it may consider appropriate for purposes of enforcing right, however, in casu that route not necessary as the defence counsel has successfully applied for recall of State witnesses- Application accordingly dismissed.

Summary: Constitutional law- The applicants who are the former Government Secretary, and Principal Secretaries in various Government ministries are suing Government for discrimination, having been made to pay back their loans after similar-circumstanced parliamentarians were absolved from paying back theirs-Held, this constituted discrimination based on ‘other status’.

SUMMARY

Constitutional litigation – Fundamental human rights – Criminal procedure – Right of accused to a fair trial in terms of section 12 (1) (c) of the Constitution of Lesotho 1993 – Right of the accused to be given access to prosecution witness statements prior to trial – Where there is reasonable risk that disclosure might lead to injury or intimidation of witness or otherwise impede proper ends of justice, Court to exercise proper discretion in balancing accused’s needs for a fair trial against legitimate interests of State – Timing and manner of disclosure – Principle of constitutional avoidance and principle of adjudicative subsidiarity encapsulated in the proviso to section 22(2) of the Constitution discussed.

The applicants are employed by the Government of Lesotho as what are called Executive Secretaries. They are attached to the offices of the Attorney General and the Judges of the High Court and the Court of Appeal. Alongside the position of Executive Secretary there exists what are called Ministerial Secretaries. These cadres shared the same grading in terms of salary and benefits. All that suddenly changed when on the 11th April 2007 the Ministry of Public Service (the 1st Respondent) issued a circular titled: RE: Offices of the Ministers and Assistant Ministers Privileges or Personal Staff. The upshot of this circular was to upgrade the position of Ministerial Secretaries. The Executive Secretaries were not included in the up-grading. They charge that their exclusion is unconstitutional as it violates the provisions of sections 18 and 19 of the Constitution of Lesotho. They seek a declaration to the effect. They want the 1st Respondent to forthwith upgrade their position to that equal to Ministerial Secretary with effect from 2nd March 2007 being the date when the ministerial secretaries upgrading came into force and that as I understand them, the difference be paid in arrear from that date. They allege that they are being discriminated against because the functions of Ministerial Secretaries are the same as those of the Executive Secretaries of the Judges, Attorney General and that the entry requirements are also the same.