Re-visiting the powers of the King under the Constitution of Lesotho : does he still have any discretion?

• Published date: 01 June 2020
• DOI: 10.17159/2225-7160/2020/v53a11
• Date: 01 June 2020
• Pages: 159-175
• Author: Hoolo ‘Nyane

Is the requirement of integration of the bride optional in customary marriages? 159

Re-visiting the powers of the King under

the Constitution of Lesotho: Does he still

have any discretion?

Hoolo ‘Nyane

LLB LLM LLD

Associate Professor, School of Law, University of Limpopo

SUMMARY

The powers of the monarch have been a subject of protracted political and

legal controversy since colonialism in Lesotho. When the country got

independence from Britain in 1966, the long drawn-out gravitation

towards British model of constitutional monarch was confirmed in the

Independence Constitution. Nevertheless, the Independence Constitution

had categories of powers for the monarch. There were powers reposed in

the King exercisable “on the advice” and those that were exercisable in his

own “deliberate discretion”. When the current Constitution was adopted in

1993, the discretionary powers of the King were effectively abolished; all

his powers became exercisable “on the advice”. That the powers of the

King under the current Constitution are only exercisable on advice has

been a long-held view in judicial policy and in legal scholarship. It was not

until 2017 when the Court of Appeal in the case of Phoofolo v The Right

Honourable Prime Minister suggested that the King may have discretion on

whether to accede to Prime Ministers “recommendation” to dissolve

parliament or not. The decision of the Court of Appeal in Phoofolo has

reinvigorated a fresh debate in constitutional scholarship about the real

powers of the monarch under the Constitution. The purpose of this paper

is to investigate the extent of the legal powers of the monarch under the

Constitution – whether indeed the King still has any discretionary power.

1Introduction

The Kingdom of Lesotho acquired statehood in the1820s after the

lifaqane wars.1 The country was formed by King Moshoeshoe and

became organised around his kingship.2 It was later colonised in 1868 by

Britain.3 When the country was preparing for independence, in the early

1 Generally see Thompson Survival in Two Worlds: Moshoeshoe of Lesotho

1786-1870 (1975); Machobane Government and Change in Lesotho 1800-1966

(1990) 5-6.

2 Weisfelder “The Basotho monarchy: a spent force or a dynamic political

factor?” (Fourteenth Annual Meeting of the African Studies Association,

Denver, 3-6 November 1971) at 5; Duncan Sotho Laws and Customs (1960)

43.

3 The colonisation of the country was a unique one because it was

proclaimed as a British Protectorate on March 12, 1868. The initial idea was

to secure the Basotho from further Boer aggression. But in the end, the

country became a colony like any other British colony. In November 1871

responsibility to administer the country was transferred to the Cape Colony

How to cite: ‘Nyane ‘Re-visiting the powers of the King under the Constitution of Lesotho: Does he still have

any discretion?’ 2020 De Jure Law Journal 159-174

http://dx.doi.org/10.17159/2225-7160/2020/v53a11

160 2020 De Jure Law Journal

1960s, the powers of the monarch was the single most captivating

subject of the constitution-making process.4 Even the political landscape

was divided along the same subject.5 The main question was whether, in

the post-independence design, the monarch would have executive

powers or be titular in the British style.6 All indications were that the

institution is going to take on British style because of the long history of

building the Westminster design in the country.7 When the

Independence Constitution was made in 1966, it became apparent that

Westminster triumphed over the voices calling for more executive

powers for the monarch.8 In fact, the 1966 Constitution, without any

equivocation, provided that the exercise of the King's powers shall be “in

accordance with any constitutional conventions applicable to the

exercise of a similar function by Her Majesty in the United Kingdom”.9

Consequently, the executive powers of the monarch shifted to the Prime

Minister and the cabinet. The King was to act “in accordance with the

advice of the cabinet or a minister acting in the general authority of

cabinet”.10 Nevertheless, the Constitution still had powers reserved for

the King's “absolute discretion”.11 These are functions that the King

3 which gained self-governing status in 1872. See Lagden The Basutos (1909);

Eldredge A South African Kingdom: The Pursuit of Security in Nineteenth-

Century Lesotho (1993).

4 Machobane 5-6.

5 Gill A Short History of Lesotho (1993).

6 Mahao “Constitutional orders and the struggle for the control of the state in

lesotho from 1966 to 1989” 1991 Lesotho Law Jo urnal 1; see also the case

of Molapo v Seeiso 1963 – 66 HCTRL 150.

7 The definition of what a Westminster constitution is has eluded scholars of

constitutional and political studies. Anckar “Westminster Lilliputs?

parliaments in former small British colonies” 2007 Parliamentary Affairs

637. At 637 the author argues that the term “Westminster refers to the

main characteristics of British parliamentary and governmental

institutions.” See also de Smith The New Commonwealth and its

Constitutions (1964). Also see de Smith “Westminster export model the

legal framework of responsible government” 1961 Journal of Commonwealth

Political Studies 2. For a systematic analys is of the Statute of Westminster

40 years since its adoption in 1931, see de Smith “Fundamental rules forty

years on” 1971 International Journal: Canada’s Journal Global Policy Analysis

347.

8 See Nwabueze Presidentialism in the Commonwealth Africa (1973). At 74 the

author rightly observes that: “[t]he situation in the Kingdom of Lesotho had

been no less disturbing, and provides perhaps the most glaring testimony

of the incompatibility of a constitutional Head of the State with the African

traditional method of government. The problem was how to make an

African King, accustomed by tradition to the exercise of executive authority,

abide by the role of a constitutional monarch cast upon him by the

Constitution… King of Lesotho, Motlotlehi Moshoeshoe II showed a

disinclination to abide by this role, conceiving of himself and his chiefs as

the real authorities of the country, just as old”.

9 S 76(2) of the 1966 Constitution.

10 S 76(1) of the 1966 Constitution.

11 S 76(2) of the 1966 Constitution.