Important constitutional judgment for Court of Appeal in Lesotho

17/06/15

The constitutional crisis in Lesotho precipitated by a challenge by its Attorney-General to the appointment of the President of the country's Court of Appeal has been resolved by two urgent court rulings.

King Letsie III, acting on advice given by Prime Minister Thabane, earlier this year appointed Maseru King's Counsel and Edinburgh-trained Dr. Kanenelo Mosito to head the Kingdom of Lesotho's highest court.

Section 88(2) of the Westminster-derived Constitution of Lesotho, 1993 provides for the appointment of the President of the Court of Appeal by the King 'on the advice of' the Prime Minister. Prime Minister Thabane gave the advice just days before the dissolution of the coalition government he headed at the time and fresh elections conducted under supervision by SADC ( the Southern African Development Community).

The Attorney-General, invoking the doctrine of collective responsibility of Cabinet expressly incorporated in the Constitution, launched an urgent challenge. He contended that the Prime Minister could not give the advice to the King without taking the matter to Cabinet for its agreement.

In view of political conflicts in Lesotho related to the issue, the Chief Justice empanelled three South African High Court judges as acting judges at first instance. They ruled against the Attorney-General, who noted an appeal. The Chief Justice then empanelled five South African Supreme Court of Appeal judges as acting judges of appeal of Lesotho.

In a unanimous judgment for the Court of Appeal, Wallis AJA (Brand, Cachalia, Shongwe and Maya AJJA concurring) dismissed the appeal.  Tracing the origins of the Cabinet in English law, and the application of the doctrine of collective responsibility in a number of modern Commonwealth constitutions, the Court ruled that concurrence by Cabinet in functions specifically devolved on the Prime Minister was no corollary of the doctrine. The provisions of the Constitution of Lesotho, 1993, like those of its Independence Constitution, 1966, made this quite clear. 

The judgment is here.