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.

A genesis of this case is that the Applicant appeared before a Magistrate Court charged of contravening Section 58(1) read with section 109 of the Penal Code Act.  At the commencement of the trial he instead of pleading to the charge applied for the matter to be referred to the High Court due to the constitutional dimensions it had taken.  A foundation of the move was that the charge originated from the information that the 3rd respondent and police had unlawfully secured from his wife.  He maintained that this violated his marital rights and privileges under the Criminal Procedure & Evidence Act (CP&EA). This according to him incidentally transcended into a violation of his constitutional rights of freedom from arbitrary search or entry, respect for private family life and fair trial.  The trial court ruled that the case be referred to the High Court sitting in its constitutional jurisdiction.  Thus, the Applicant asked this court to order in the light of the identified transgressions that the proceedings before the trial court be permanently stayed pending finalization of this case.  Further, he prayed that upon a granting of that relief, it be logically ordered that the vehicle held by the 3rd respondent per a preservation order made by the High Court sitting in its ordinary capacity be restored into his custody.  The Court found that the Applicant has contrary to Section 22 (3) of the Constitution failed to demonstrate that relieves he is seeking for, could not be adequately obtained from another qualified court other than the High Court and that the same would not be so if other laws other than the Constitution were applied.  It emerged that the trial court had the jurisdiction to resolve the issues involved and that the CP&EA adequately provides for a remedy through objecting the admissibility of any evidence connected with the impugned information from the wife.

Eventually, application was dismissed without costs because it was made in good faith and for the sake that citizens should not be discouraged from instituting constitutional cases for the enhancement of our jurisprudence.     

Constitutional application lodged against the respondents for, in the main, a declaratory order that a policy in terms of which officers who held the LLB degree at the time of their enlistment into the Correctional Service, qualified to be remunerated at the Grade G salary scale and almost automatically promotable to a rank of Assistant Superintendent.  On the contrary, their counterparts who attained the qualification while already in the service were not entitled to the same treatment.  The differentiation was found not to be premised upon any of the constitutionally specified grounds for discrimination but on a characteristically analogous one.  The Applicant demonstrated that the policy based interpretation and decision by the 1st Respondent, was not only discriminatory but also unfair since in the circumstances of this case, it was not sanctioned by a constitutional limitation of his equality related rights in pursuit of any legitimate societal goal. She could not, consequently, advance a complementary account that her decision was implemented in the manner which proportionally interfered with his rights in a minimal manner geared towards the attainment of a general benefit for the society.

It was accordingly declared that the decision of the 1st Respondent was unconstitutional and set aside.  In addition, it was pronounced that the Applicant was retrospectively entitled to have his salary elevated to a Grade G Scale and be paid retention allowance similarly to his colleagues who have the LLB qualification. Though it is common cause that some officers were clandestinely promoted, the Court declined to set aside those promotions because the beneficiaries of the decision were not joined in the litigation. 

Constitutional law----Applicant applying for a declaration that utterances by the Prime Minister that the police should whip suspects when out public glare, unconstitutional--- the applicant having failed to satisfy the jurisdictional requirements of s.22 of the Constitution, the application dismissed with costs, on account of his conduct.

Applicant who was advisor to former Prime Minister and in that capacity benefited from a Government loan scheme by borrowing M500 000. 00 without interest from a bank. Parliamentarians and ministers equally benefiting from the scheme. Government featured as a guarantor for the payments of the loans.   Post change of Government in 2017 resulting from a passing of a motion of no confidence against the then Prime Minister and the outcome of the elections, the Applicant and other holders of political offices vacated their political offices.  A   substantial number of parliamentarians in the 9th Parliament also lost their membership of parliament following their defeat in the elections.  Resultantly, the borrowers became financially challenged to service the loans.  Some however, reassumed membership in the 10th Parliament with others even becoming ministers. A new Government discharged its status as a guarantor by introducing a policy for the borrowers to settle debts on the loans.  The policy decision resolved that Government would pay for the remaining debts of the borrowers who were parliamentarians while those of the Applicant and others would be settled through seizing of their gratuities to pay for their debts. Applicant lamented before the court that the decision was discriminatory on the undisputed narrated political grounds while Respondents maintained that it was a mere differentiation.  The court held:

1. The policy was unfairly discriminatory since it classified people whose basic and material commonality is that they are all borrowers of money from banks under the same scheme and with the same terms and conditions and that being a member of parliament is contextually irrelevant to justify the measure;
2. The advantageous debt forgiveness accorded to the parliamentarians in contrast to the disadvantageous one given to the Applicant and others reinforces the unfairness of discrimination;
3. The Respondents failed to demonstrate that the decision was in pursuit of a legitimate goal to advance national interest let alone its proportionality towards that.And, their explanationthat it was intended to enhance freedom of parliamentarians to check and balance exercise of power by the Executive yet some of the beneficiaries are ministers and ex parliamentarians is rejected;
4. Consequently, the Applicant has proven that the Respondents violated his constitutional right of freedom from discrimination, right to equality and freedom from arbitrary seizure of property.

Constitution of Lesotho 1993 - powers to appoint Ambassador/Principal Representatives abroad – Section 143 of the Constitution.

Where an Ambassador has not been commissioned before the King, the appointment is not complete.  The court has no power to validate appointment. Royal Prerogative is an aspect of separation of powers.

Constitution of Lesotho 1993 - powers to appoint Ambassador/Principal Representatives abroad – Section 143 of the Constitution.

Where an Ambassador has not been commissioned before the King, the appointment is not complete.  The court has no power to validate appointment. Royal Prerogative is an aspect of separation of powers.

Application by unincorporated associations challenging refusal by Parliament to afford them opportunity to make representations about a bill – bill passed by National Assembly but rejected by Senate – whether the bill should have been reconsidered by National Assembly before being sent for Royal assent – locus standi of applicants to impugn the legislative process and enactment of bill into an Act – Constitution, sections 20, 78, 80 and 81(1).