Lesotho Law Journal

Publisher:
Sabinet African Journals
Publication date:
2021-07-19
ISBN:
0255-6472

Description:

The Lesotho LJ is a Law and Development journal, published under the auspices of Faculty of Law, National University of Lesotho . The journal is predominantly legal in nature, but we do accept articles from other disciplines provided they are development oriented and take a multidisciplinary approach to law.

Issue Number

Latest documents

  • Criminalising the Deliberate Infection of Another with HIV/AIDS in Zimbabwe – A Human Rights Perspective

    Since the HIV virus was discovered almost 40 years ago, the use of the criminal law system as one of the ways that states use to respond to the virus has been controversial. The criminal law response included the promulgation of specific legislation criminalising the deliberate spread of the disease and the provision of mandatory minimum sentences for persons that committed offenses that had the potential to spread the disease. The legislation itself and the procedures for implementing the legislation appear to infringe on the human rights of the persons accused of committing these crimes. This paper seeks to review these laws and their interaction with constitutionally mandated rights and discusses how these apparent conflicts between rights can be balanced. There will be recommendations on how the legislation may be reviewed/improved if necessary.

  • Horizontal Application of Lesotho’s Constitutional Bill of Rights (Part B)

    In Part A of this Article (published in Lesotho Law Journal (2018), we unpacked the traditional public-private distinction which account for the vertical application of the Bill of Rights; the rise and fall of the distinctions; the disposition towards the horizontal application of the Bill of Rights; and the doctrine of horizontality (together with its variants or models). Part B of the Article continues the doctrinal analysis of horizontality and locates the doctrine’s normative content in the Constitution of Lesotho. The paper takes a textual analytical approach and relies on context-specific judicial decisions to answer the critical question whether Lesotho’s constitutional Bill of Rights is horizontally applicable, that is, whether it applies in horizontal (private) sphere.\r\nThe paper then highlights the implications of this doctrine on the courts of Lesotho in respecting, promoting and realising the fundamental human rights of the people in Lesotho in private sphere. Through the application of this doctrine, the paper identifies broad triple-fold constitutional obligations imposed on the Lesotho’s judiciary by the horizontally applicable Bill of Rights: first, courts’ obligation to protect, uphold and promote the constitutional supremacy and integrity as well as the Constitution’s value system; second, the courts’ obligation, as part of state authorities themselves, to avoid contravening human rights of private actors and to protect private actor’s rights and freedom against contravention by another private actor; and finally, the courts’ duty to develop private law to conform with the private actors’ fundamental human rights and freedoms where there is inconsistency between private law and the constitutional Bill of Rights.

  • The Use of Polygraph on Employees at the Work Place and the Position of the Law in Lesotho

    People often refer to the polygraph examination as a lie detector test, but according to the American Psychological Association1, the polygraph examination is not a lie detector and cannot detect lies. Polygraph, meaning “many writings,” is derived from the Greek language. Polygraph refers to mainly two things, namely the technique applied and the instrument used for such verification of the facts2. A polygraph test is a test used to verify a person\'s truthfulness whereby a machine is wired around the body of a person and the interviewer begins to ask the subject questions. The use of this test is prevalent in Lesotho, especially in the mining and textile industries. As a scientific test, it has its own limitations. First it can only be administered on the category of people who are in proper physical and mental condition. The second and most important condition is that, the subject must consent to its use.3\r\nThe polygraph examination services provided in Lesotho are almost exclusively imported from South Africa and according to Lewis and Edmonds-Smith4 there are currently no set tests in South African law by which expert testimony can be gauged. In the United States of America, forensic science testimony is measured according to the Daubert test.5 The guidelines that constitute the Daubert test are whether the testimony is based on sufficient scientific facts or data; whether the methods and principles utilised by the expert witness are reliable and whether those methods and principles are applied correctly and reliably. Therefore, the competence of evidence obtained through a polygraph test is very much dependent upon the qualifications and experience of the polygraph examiner.\r\nIt is the authors’ opinion that in order to ensure credibility and reliability of the testimony proffered by a polygraph examiner, they must at least proof some form of technical training in the operation of the polygraph, and with extensive experience in conducting polygraph examinations, he must be registered with a reputable professional body with established standards of practice.

  • The Role of the Judiciary in Lesotho’s Constitutional Democracy Since 1993: Challenges and Prospects

    This paper highlights the salient role played by the courts of Lesotho in safeguarding Lesotho’s constitutional democracy since promulgation of the Constitution in 1993. The role played by the courts is discerned from the laws which establish such courts as well as the jurisprudence of the courts in the last thirty years. The assessment of this role is based amongst others, on the High Court and Court of Appeal’s decisions in cases involving the rule of law, separation of powers, application of international human rights law as well as independence of the judiciary. While Lesotho has had a turbulent political landscape characterized by suspension of the 1966 Constitution, military coup, ‘royal coup’ and untimely collapse of coalition governments since 2012, this paper is aimed at illustrating how the judiciary has over the years sustained constitutional democracy amidst the turbulent political landscape. Jurisprudence of the High Court and the Court of Appeal will be used for this illustration.

  • Keynote Address by Honourable Chief Justice Sakoane Peter Sakoane at the Ruby Jubilee of the Law Society’s 40th Anniversary, Maseru Avani, Maseru, 8th December 2023

    1. The Law Society tells me that the theme of this event is “A Time for Introspection and Reflection.” By this theme, the Law Society wants to introspect and reflect on its journey and growth as it celebrates forty years of existence. Forty years of existence says that the Law Society is a mature adult who has seen the ups and downs of life; an adult who has had moments of darkness and sunshine, trials and tribulations, failures and successes. The task before hand requires of me to raise issues, ask a few questions, seek answers and make some suggestions on how the Law Society can revitalize.

  • Something Happened on Our Way to ‘A Funny Democracy’: A Critical Analysis of 2018 (2) SA 571 (CC) Executive Accountability in South Africa and Lesotho

    The note examines the majority and minority judgments in Economic Freedom Fighters v Speaker of the National Assembly. It critically examines the majority judgment in for demonstrating lack of commitment to the text of the Constitution. The note uses its examination of the latter case to consider possible relevance and application of the case in Lesotho.

  • Enforceability of Collective Agreement in Nigeria: The Imperative for Legal Paradigm Shift

    Prior or after the occurrence of dispute in an industrial undertaking, the employees or their association usually explore the option of attempting to reach amicable settlement with the employer or their association through collective bargaining. The process; where it is successful, culminates into an agreement known as collective agreement. Both local and international labour instruments give credence to collective bargaining as an integral part of labour and employment relations. In Nigeria, collective agreements, despite the onerous process of bargaining, subject to very strenuous exceptions, are unenforceable because they are regarded as “gentleman’s agreement” binding only in honour. This has accounted for incessant strikes from various employee associations against the government for failure to implement collective agreement because the only available remedy in such failure is resort to industrial action. This paper through comparative and doctrinal research methodologies, argues that collective agreement should become enforceable once reached considering the human and material resources expended in the process. It contends that automatic enforcement of collective agreement would create industrial stability and transparency as it would no longer be exploited as a palliative measure against employees’ agitation. It makes vital recommendations towards achieving automatic enforcement of collective agreement before conclusion.

  • Anti-Kidnapping Legislations in Nigeria: A Comparative Approach

    The act of kidnapping has become both social and economic challenges in Nigeria. This has affected the country because most foreign countries have resorted to warning their citizens to be wary of visits to Nigeria. Thus, many would-be investors have stayed away from the country for fear of being kidnapped or killed in the process. It is therefore obvious and appalling state of social and security confusion in Nigeria that fuelled the recent legislative reactions both by the federal government and some state governments in Nigeria. This however, resulted in the enactment of laws with more stringent provisions than the ones contained in the Criminal Code Act applicable in the southern part of Nigeria, and the Penal Code which is applicable in the northern part of Nigeria respectively, with a view to stamping out the menace from existence as a social and security problem in Nigeria. However, this study questions the effectiveness or otherwise of these legislations in deterring or curbing the menace of kidnapping in Nigeria by taking a comparative look at the relevant provisions of some states’ laws in Nigeria having bearing on the offence of kidnaping, as well as the relevant provisions in some foreign jurisdictions and appraise the usefulness or otherwise of these provisions having regard to the realities of the kidnapping menace in Nigeria and thereafter proffer some policy recommendations.

  • Beyond Law Making: Law Enforcement as a Critical Tool In Tackling Fulani Herdsmen Crisis In Nigeria

    The communities in the middle-belt region of Nigeria have been exposed to violent attacks by Fulani herdsmen for about two decades. The attacks to which thousands of people have lost their lives and several other displaced have gradually degenerated to a state of chaos threatening national security. The on-going security turmoil in the middle belt mirrors the failure of law enforcement and implementation in the country. Whereas these attacks amount to criminal acts including murder, manslaughter and arson there has been no commendable effort towards arrest, trial and sentencing of culprits. The link between crime and punishment is severed hence difficulty of ending the attacks. The inadequacy of criminal enforcement and punishment which accounts for the high rate of crime and insecurity in the country amount to breach of the constitutional obligation of government to preserve security of lives and properties and fundamental human rights of the people. This study examines Fulani herdsmen attacks from the perspective of criminal law enforcement as tool for preserving social order and security. Although the government of the various concerned middle belt/North Central states have enacted anti-gracing laws, law enactment alone will not suffice to curb crime hence the incessant nature of the attacks. The aim of this study is to proffer proactive solutions to the farmer-herder killings in the middle belt region of Nigeria. This is with the objective of ascertaining factors responsible for the failure of existing criminal legal system in tackling societal crimes incidental to the herdsmen crisis and to deter further attacks. The study examines various narratives to the Fulani-herdsmen crisis and theoretical perspectives on crime and punishment. The study found the inadequacy of law enactment in the country, the current federal policing structure, erosion of communal dispute settlement system and general lack of political will as responsible for the problem. The study recommends review of the criminal justice system to update relevant laws and proper implement of applicable law laws as the crimes committed in the course of the attacks are all recognised under existing laws.

  • Something Happened on Our Way to ‘A Funny Democracy’: A Critical Analysis of 2018 (2) SA 571 (CC) Executive Accountability in South Africa and Lesotho

    The note examines the majority and minority judgments in Economic Freedom Fighters v Speaker of the National Assembly. It critically examines the majority judgment in for demonstrating lack of commitment to the text of the Constitution. The note uses its examination of the latter case to consider possible relevance and application of the case in Lesotho.

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