Constitutionalism and constitutional amendment in Lesotho : a case for substantive limitations

• Published date: 01 January 2014
• Author: K.K. Mohau
• Pages: 1-32
• Date: 01 January 2014
• DOI: 10.10520/EJC177126

CONSTITUTIONALISM AND

CONSTITUTIONAL AMENDMENT IN

LESOTHO: A CASE FOR SUBSTANTIVE

LIMITATIONS

Mohau, K.K.*

Abstract

The idea of a limited government encapsulated in the concept

of constitutionalism is, like all ideals, capable of realization

to differing degrees from country to country, and even at

different times in one country’s constitutional development.

Constitutional amendment is indispensable to constitutional

development but, like a double edged sword, the process is

capable of either helping or hurting a country’s project to

build a constitutional state. This paper evaluates the

amendment process provided for in the Constitution of

Lesotho. It makes a case for adopting substantive limitations

to the Constitution’s amendment as a means of ensuring the

continued respect for constitutionalism.

Introduction

The quest for a limited government bears a long history and cuts

across civilizations. More than two thousand years ago Aristotle

wrote that “the rule of law… is preferable to that of any man.”

1

*BA (Law), LL B (NUL); LL M (Warwick). Lecturer, Faculty of Law, NUL.

1

Aristotle, (384-322 BC) Politics, (Book Three) (Benjamin Jowett Translation) 53.

Before Aristotle, another Greek philosopher, Plato (428-347 BC) had in his work,

Laws ,IV 715d said,

“[w]here the law is subject to some other authority and has none of its

own, the collapse of the state, in my view, is not far off; but if law is the

master of the government and the government is its slave, the situation is

full of promise and men enjoy the blessings that the gods shower on the

state.”

2 LLJ. NO. 21 Special Edition

Thomas Paine described government as a necessary evil.

2

It is

necessary for the protection of individual and collective rights; for

the settlement of disputes; the maintenance of peace and for

repelling external threats.

3

On the negative side is its penchant for

the abuse of the immense powers of legislation, adjudication and

execution that it commands. Consequently, the question as to how

best to rein in these powers has occupied the minds of many people

for generations and different scholars have provided different ways

of doing so.

The Basotho of old dealt with the problem of errant rulers through

the practice of ho reteletsa monyako (to switch allegiances) in terms of

which dissatisfied subjects would leave one chief for another

perceived to be a better ruler endowed with botho (humanity).

4

The concept of constitutionalism is one of the various ideas

proffered about keeping the government in check.

5

Constitutionalism requires that government should operate under,

and observe, limitations established by a supreme constitution.

6

This means that tampering with a country’s constitution may,

depending on the nature of the changes made, either augment or

diminish the observance of constitutionalism.

7

This paper briefly examines the nature of the concept of

constitutionalism and its applicability to Lesotho. It looks at the

2

Thomas Pain e, Common Sen se, (Philadelphia: R. Bell, 1776)69; See also B.O.

Nwabueze, Constitutionalism in Emergent States, (London: C. Hurst, 1973)1.

3

See, for example, the United States Declaration of Independence of 4 July 1776 a nd

paragraph 2 of the French Declaration of the Rights of Man and Citizen (1789).

4

Hugh Ashton, The Basuto, (London: Oxford University Press,1957) 217;

NtsuMokhehle (ed), Moshoeshoe 1 Profile – Se Moshoeshoe, (1976) 17-19.

5

Others include the rule of law, independence of the judiciary, separation of

powers and checks and balances.

6

Iain Currie and John de Waal, The New Constitutional and Administrative Law,

(Lansdowne: Juta Law, 2001) 9; B.O. Nwabueze, Constitutionalism in the Emergent

States, (London: C. Hurst & Co., 1973)9.

7

S. Butler, “The Constitutional Court Certification Judgments: The 1996

Constitutional Bills, Their Amending Provisions, and the Constitutional Principles”

114(1997) SALJ 703 at 714.

Constitutionalism and Constitutional Amendment in Lesotho 3

process of constitutional amendment and examines the relationship

between constitutionalism and constitutional amendment. The

paper also discusses the nature of constitutional amendment under

the Constitution of Lesotho and recommends substantive

limitations to all future amendments of the 1993 Constitution.

The Nature of Constitutionalism

The concept of constitutionalism is defined in descriptive as well as

prescriptive terms. In its earlier descriptive sense, the term had been

confined to a description of the rules governing the establishment

and functioning of government institutions.

8

On the other hand, the modern prescriptive sense of

constitutionalism lays down minimum standards to be met for

constitutionalism to obtain in a country. It prescribes

constitutionally determined structural, procedural and substantive

limitations on government.

9

In this sense, constitutionalism is

distinguishable from constitutionality which merely means

governing according to the precepts of the constitution. It is,

accordingly, possible to have constitutionality without

constitutionalism. This is what many African countries experienced

following the abrogation of independence constitutions and their

replacement with constitutions that were touted as designed to fast

track development and be more in touch with the unique African

realities. In practice, these constitutions proved useless in

restraining African rulers from abusing power as aptly observed by

Okoth Ogendo.

10

Apartheid South Africa ensured the legalization of

the universally abhorred system of apartheid through the

constitution that excluded the African majority from participating

in the country’s mainstream political life.

8

See Iain Currie and Johan de Waal, The New Constitutional & Administrative Law

Volume One, p12.

9

For a discussion of the evolution of constitutionalism over the yearssee, Charles

Howard McIlwain, Constitutionalism, Ancient and Modern, (1947).

10

H.G.W. Okoth-Ogendo, Constitutions without Constitutionalism: An African

political paradox” in Douglas Greenberg, S.N. Kartz, B. Oliviero and S.C. Wheatly

(Eds), Constitutionalism and Democracy (New York: OUP) Chapter 4.