1,720,972 research outputs found
The Constitutional Rules of Succession to the Institution of Monarch in Lesotho
Get PDFThe rules that govern succession to the office of King in Lesotho are largely customary. The Constitution of Lesotho, 1993 provides that succession to the office of King shall be regulated in terms of customary law; the Constitution itself does not provide for the substantive and procedural rules governing succession. The zenith of customary rules is that succession to kingship in Lesotho is based on the principle of primogeniture. The primogeniture rule has always presented problems of application in Lesotho; more so in the era of equality and democracy. This paper critiques the rules of succession to the office of King. It contends that by leaving the regulation of succession exclusively to customary law without clear articulation in the Constitution, the Constitution is unduly yielding to a system of law (customary law) which is not only subservient to the Constitution but also based on a different set of values. The paper recommends that the rules of succession must be codified in the Constitution and must be realigned with contemporary notions of constitutionalism and equality.
 
Judicial Review of the Legislative Process in Lesotho: Lessons from South Africa
Get PDFThe Constitution of Lesotho has a supremacy clause which ordinarily empowers the judiciary to review the actions of other branches of government. However, the judiciary in Lesotho seems to treat the legislative process with deference. This deference seems to be based on the old common law notion of the non-intervention of the judiciary in the legislative process. The notion has its roots in the British constitutional system. The Constitution of Lesotho, 1993 has even protected this doctrine through a constitutional ouster clause in section 80(5). The main question which this paper seeks to answer is whether indeed the common law notion of non-intervention in the legislative process is part of the constitutional law of Lesotho. In the end, the paper uses South African jurisprudence on the review of the legislative process to make a case that Lesotho can use the supremacy clause in the constitution and other constitutional doctrines such as the rule of law and legality to break with the common law notion of non-interventionism.
 
The challenges of litigating the right to basic education in South Africa: Is the right realisable immediately or subject to resource limitation?
Get PDFThe right to education is embodied in section 29 of the South African Constitution. Section 29(1) distinguishes between the right to basic education and the right to further education: the former is unqualified, while the right to further education has an internal qualifier. Like other socio-economic rights in the Constitution – such as the rights to housing, healthcare, food, water and social security – the right to further education imposes a positive obligation on the state to take reasonable measures within available means to realise the right progressively. The courts’ approach to this duality has thus far been that the right to basic education, unlike the right to further education, does not depend on the availability of resources or progressive realisation: it is “realisable immediately”. The difficulty with this approach is that it assumes that the right to basic education can be enforceable without resource implications as a limitation common to all socio-economic rights. The purpose of this article is to interrogate this assumption. The central hypothesis is that the right to education can be better realised if it is understood as an economic right par excellence subject to the common limitations applicable to the enforceability of economic rights in South Africa and at the international level.
 
Critical analysis of public insecurity and the right to freedom from all forms of violence in South Africa
Get PDFSouth Africa faces high levels of public insecurity and various forms of violence, which threaten to curtail the constitutional right of everyone to enjoy the right to freedom from all forms of violence emanating from public or private sources. However, little attention has been paid to the state’s obligations to provide public safety and security in terms of the Constitution and international law. As a result, this dissertation examines the right to freedom from all forms of violence in South Africa, as guaranteed by section 12(1)(c) of the Constitution. It investigates whether the state has fulfilled its obligations to respect, protect, promote, and fulfil this right in terms of the Constitution and international human rights instruments. The study adopts a qualitative research design, using a critical paradigm and an interpretive approach to analyse the concept of violence, public insecurity, and the legal framework for the right to freedom from violence. It analyses primary and secondary data sources, such as legislation, case law, treaties, reports, and academic literature. The study finds that South Africa faces high levels of violence and public insecurity, which threaten the enjoyment of this right by all people. It also finds that the state has failed to comply with its constitutional and international obligations to provide adequate safety and security measures, prevent and punish violence, and address its root causes. The study argues, with reference to local case law, that the right to freedom from violence is a fundamental human right essential for human dignity, democracy, and social justice. It concludes by recommending legal, policy, and institutional reforms to enhance the protection and promotion of the right to freedom from violence. It suggests that the state should adopt a comprehensive and holistic strategy to combat violence based on human rights principles, accountability, and participation. The study contributes to the literature on violence and human rights in South Africa. It proposes a normative framework for the interpretation and implementation of the right to freedom from violence.LL.M. (Constitutional Law)College of La
The changing nature of the power of prorogation of Parliament in Lesotho: from absolute prerogative to rationality?
Get PDFThe Constitution of Lesotho vests the power to prorogue parliament in the King. Like all executive powers, the power of prorogation is exercisable on the advice of the Prime Minister. In the past, this power was understood as an absolute prerogative that needed no justification, provided it was done in terms of the Constitution. Successive Prime Ministers in Lesotho have used prorogation as a potent political weapon to ward off any political turbulence in Parliament that posed an existential threat to their governments. These Prime Ministers operated under the long-held view that the power to prorogue Parliament is an absolute prerogative. There are clear indications that this orthodox view is rapidly changing. The recent decision of the Constitutional Court in All Basotho Convention v Prime Minister (2020) seems to be ushering in a new approach. In effect, the decision suggests that it is no longer enough that Parliament can be prorogued in terms of the express provisions of the Constitution; the exercise of such power must also be justifiable. This new approach seems to be in keeping with general trends in public law, namely, that the exercise of public power must not only be sourced in law, but must also be rational. The main question is whether prorogation has indeed drifted from being absolute to being exercisable based on rationality as an incident of the doctrine of legality. The purpose of this article is to investigate this question
Book Review: Moseneke D All Rise: A Judicial Memoir (Pickado Africa Johannesburg 2020)
Get PDFThe contribution is the review published by former Deputy Chief Justice, Dikhang Moseneke, about his illustrious 15-year term in the Constitutional Court as both the judge and Deputy Chief Justice. The book uniquely provides a rare window into the dynamics of judicial decision-making at the apex court. Often, legal academics only interact with the judiciary through the judgements. Yet, Moseneke gives the reader much more to the judicial decision-making process than just the judgements. The book further traverses one of the most controversial aspects of the Constitutional Court’s jurisprudence, such as same-sex marriages, succession to chieftainship
The Constitutional Rules of Succession to the Institution of Monarch in Lesotho
Get PDFThe rules that govern succession to the office of King in Lesotho are largely customary. The Constitution of Lesotho, 1993 provides that succession to the office of King shall be regulated in terms of customary law; the Constitution itself does not provide for the substantive and procedural rules governing succession. The zenith of customary rules is that succession to kingship in Lesotho is based on the principle of primogeniture. The primogeniture rule has always presented problems of application in Lesotho; more so in the era of equality and democracy. This paper critiques the rules of succession to the office of King. It contends that by leaving the regulation of succession exclusively to customary law without clear articulation in the Constitution, the Constitution is unduly yielding to a system of law (customary law) which is not only subservient to the Constitution but also based on a different set of values. The paper recommends that the rules of succession must be codified in the Constitution and must be realigned with contemporary notions of constitutionalism and equality
Bicameralism in Lesotho: A review of the powers and composition of the second chamber
Get PDFLesotho has a bicameral parliamentary system based on the British model. While the National Assembly is clearly a representative House elected by the citizenry, the purpose, structure and legislative powers of the Senate as the Second Chamber have been a matter of considerable controversy throughout the history of parliamentary democracy in the country. The National Assembly generally has the upper hand not only in the legislative process but also in the broader parliamentary system – it chooses the Prime Minister, it places its confidence in the government and it can withdraw such confidence. The fact that the model generally gives the National Assembly the upper hand is a matter of common cause. What is in question, though, is the nature and extent of the limitation of the powers of the Senate in terms of the Constitution. This article investigates this question and contends that the composition of, and restrictions on, the Senate need to be reviewed in order to enable the Chamber to play a meaningful role in Lesotho’s parliamentary democracy
Judicial Review of the Legislative Process in Lesotho: Lessons from South Africa
Get PDFThe Constitution of Lesotho, 1993 has a supremacy clause which ordinarily empowers the judiciary to review the actions of other branches of government. However, the judiciary in Lesotho seems to treat the legislative process with deference. This deference seems to be based on the old common law notion of the non-intervention of the judiciary in the legislative process. The notion has its roots in the British constitutional system. The Constitution of Lesotho has even protected this doctrine through a constitutional ouster clause in section 80(5). The main question which this paper seeks to answer is whether indeed the common law notion of non-intervention in the legislative process is part of the constitutional law of Lesotho. In the end, the paper uses South African jurisprudence on the review of the legislative process to make a case that Lesotho can use the supremacy clause in the constitution and other constitutional doctrines such as the rule of law and legality to break with the common law notion of non-interventionism
- …
