Prosecutorial independence in Lesotho : a critique of the model

• Author: Hoolo ‘Nyane
• DOI: 10.25159/2522-6800/7124
• Published date: 01 July 2020
• Date: 01 July 2020
• Pages: 1-26

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/7026

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 35 | Number 2 | 2020 | #7026 | 26 pages

© Unisa Press 2021

Prosecutorial Independence in Lesotho: A Critique

of the Model

Hoolo ’Nyane

https://orcid.org/0000-0001-5674-8163

University of Limpopo, South Africa

hnyane@yahoo.co.uk

Abstract

The Constitution of Lesotho is substantially cast on the Westminster prototype.

As such, its institutions, by and large, reflect the structure of similar institutions

at Westminster. The institution of the Director of Public Prosecutions (DPP) is

no different: it has been designed to mirror its namesake under the British

constitutional design. The underlying feature of classic British-based

constitutions is the weak separation of powers and the predominance and

condescending nature of the executive branch of government, as incarnated by

the office of the Prime Minister. As such, most institutions within the design are

beholden to the executive in general and to the Prime Minister in particular. The

institution of the DPP is integral in the administration of criminal justice. Hence,

its independence and its accountability in the discharge of this important

constitutional mandate are of paramount importance. This notwithstanding, the

Constitution of Lesotho is generally weak on safeguarding the independence of

the office of the DPP and ensuring its corresponding duty of accountability. The

purpose of this article is to critique the constitutional design in relation to the

office of the DPP and to expose the deficiency of the constitutional clause

establishing the Lesotho DPP office. The article contends that while the

Constitution, under section 141, provides for some small measure of

independence of this office, the broader schematisation of the Constitution is

feeble on the independence and accountability of the office. The article analyses

the constitutional design of the Lesotho DPP office in comparison with

international developments.

Keywords: Constitution of Lesotho; Director of Public Prosecutions; constitution;

Attorney General; rule of law; independence of the office of the Director

of Public Prosecutions

’Nyane

2

Introduction

The constitutions of Lesotho,

1

since independence, have always recognised the

importance of public prosecutions and the need to have a constitutional institution

mandated to oversee them.

2

According to section 99 of the 1993 Constitution, the office

of the Director of Public Prosecutions (DPP) is mandated to institute, take over, or

discontinue any criminal prosecutions.

3

While it would seem that the sensitivity of this

mandate has always been appreciated, the constitutions have always taken the

independence of this institution for granted. When Lesotho gained independence from

Britain in 1966, almost all the institutions of the state—the judiciary, legislature, and

the executive—were cast on the British model.

4

As Macartney has pointedly observed,

in relation to the legislature,

certainly the physical pattern is that of Westminster, down to the dispatch boxes

presented by the British House of Commons and the Gentleman Usher of the Black Rod,

who looks just as much the part as does his British namesake. In its anxiety not to deviate

from British parliamentary practice indeed the National Assembly is officially converted

into an upper house for the Speech from the Throne by the simple expedient of a ritual

draping of the Speaker’s chair with royal purple.

5

The above observation is true even for the institution of the DPP. The 1966 Constitution

established the institution as an ‘office in the public service’

6

and invested it with fairly

broad powers to institute and undertake any criminal proceedings against any person in

any court and to take over or discontinue any criminal proceedings.

7

In keeping with the

British conception, the office of the DPP was established as the dominus litis of all

criminal prosecutions.

8

Its independence was established under section 84(6) of the

Constitution as follows: ‘[I]n the exercise of the functions vested in him by subsection

(2) of this section and by section 62 of this Constitution, the Director of Public

Prosecutions shall not be subjected to the direction of control of any person or authority.’

This section was a salutary embodiment of the doctrine of prosecutorial independence.

9

However, the 1966 Constitution never created a proper institutional framework to

realise the independence of this institution. The relationship of the institution with the

1

Both the Constitution of 1966 and the Constitution of 1993.

2

See Lesotho Independence Constitution of 1966 (Schedule to Lesotho Independence Order No 1172

of 1966).

3

Section 99(2)(a), (b), and (c).

4

Allan Macartney, ‘African Westminster? The Parliament of Lesotho’ (1970) Parliamentary Affairs

121.

5

ibid.

6

Section 84 of the Independence Constitution of 1966.

7

ibid.

8

S v Sole and Others (CRI/T/111/99) <https://www.lesotholii.org/ls/judgment/high-court/2001/35>

accessed 27 March 2019.

9

Didrick Castberg, ‘Prosecutorial Independence in Japan’ (1997) 16 UCLA Pacific Basin LJ 38.