Since the popularization of the doctrine of separation of powers in the 18th century by Baron De Montesquieu, emerging democratic nations have continued to strive towards evolving patterns of governance that suit their internal needs with regards to the political, social and cultural peculiarities of each nation. Lesotho is no exception to this evolutionary trend, as the country transitions from a traditional monarchical to parliamentary system of government, founded on popular democracy. The 1993 Constitution of Lesotho embodies provisions that ensure the distribution of governmental powers among the three arms of government, but with due reverence to the monarch whose powers cut across each branch of government. The judiciary plays a very important role in preserving the tenets of the constitution. The courts in Lesotho have been very assertive, sometimes excessively so, by intruding into the functions of the other arms of government. This paper captures the true importance of the doctrine of separation of powers, examines the Lesotho constitutional arrangement in preserving this doctrine and calls for caution on the part of the courts as guardians of the constitutional order.
The evolution of the modern system of government in Lesotho, originating immediately after the colonial era,1 has not followed a traditional separation of powers principle. The Resident Commissioner, for instance, exercised both executive and judicial powers as the governor and the judge of the High Court, respectively.2 At a district level, the District Commissioners who were district administrators operated the Magistrate Court. This was not surprising as the British, who spearheaded the colonial administration in Lesotho, had not even been observing the doctrine of separation of powers in Britain. This development elicited a passing comment by Schutz P. in Lesotho v Honourable the Prime Minister of Lesotho and Another3 that “[o]ne might, wrongly, have concluded that the British had not even heard of Montesquieu.” Maqutu J.A., however, provided a succinct response in Law Society of Lesotho v Ramodibedi NO and Others4 where he observed as follows:
After all the doctrine of separation of powers is not quite a British constitutional doctrine. It is really a constitutional analysis of the British constitution as Baron de Montesquieu saw it in The Spirit of the Laws. His objective was to influence French constitutional thinking which tolerated despotism. He wanted power not to be concentrated in the hands of the same person – so that there could be checks and balances.
The Justice of the Appellate Court stated that Britain conforms to the spirit of separation of powers only to the extent that the government never tries to undermine or invade the independence and impartiality of the Lord Chancellor as a judge, or that of the judiciary as a whole.5 The courts only became a separate arm of the government in Lesotho in 1938 by virtue of the High Court Proclamation 57 of 1938. Section 12 of that Proclamation, which of course had been issued by the executive, substituted the High Court for the Resident Commissioner’s Court, wherever it appeared.6 Section 11 of the Proclamation, however, continued to vest in the Resident Commissioner a limited jurisdiction when the High Court is not in session.
This pattern was maintained under the Basutoland (Constitution) Order in Council of 1959 but with a novelty contained in section 67 which provided that a judge could be removed only for inability to discharge the functions of his office or for misbehavior, and that only on the recommendation of the Judicial Committee of the Privy Council after suitable enquiry. P. Shultz saw this as the first highlight of the doctrine advocated by Montesquieu.7
The real statutory experiment on the implementation of the doctrine of separation of powers in Lesotho was witnessed in the provisions contained in the Constitution of Basutoland, found in Schedule II to the Basutoland Order of 1965.8 That constitution provided in principle for three arms of government, namely: the parliament, the executive and the judicature, in chapters IV, V and VIII, respectively. The actual wordings of those provisions, however, did not envisage a detachment of one arm of government from the other. A similar pattern of separation of powers, with a coordinated approach to the discharge of responsibilities by the three arms of government, though with significant modifications, is found in the 1993 constitution of Lesotho, which forms the basis of this discourse.
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state.9 Separation of powers is the idea that the powers of a sovereign government should be split between two or more strongly independent entities, preventing any one person or group from gaining too much power. In democratic systems of governance based on the trias politica, three branches of government (legislative, executive, judicial) exist largely independent of each other, with their own prerogatives, domains of activity, and exercises of control over each other.10
This concept originated from the English philosopher John Locke, around the 17th century. John Locke thought of all men, by nature, as free, equal, and independent. He traced the root of modern political society, as founded on mutual consent of all for the protection of their commonwealth, and abhorred all forms of absolutism embedded in the innate over possessive instincts of man. A society founded on mutual consent must exclude absolute monarchs which consign on one person the legislative and executive powers of the political society. Where such monarchs exist, they make laws to govern resolution of disputes between subjects, but exempt themselves from the application of such laws. Any questioning of the acts of the monarch is seen as a rebellion, “as if when men quitting the state of nature entered into society, they agreed that all of them but one, should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity”.11 Such a situation, according to Locke, “creates the impression that men are so foolish, that they take care to avoid what mischief may be done them by pole- cats, or foxes; but are content, nay, think it safety, to be devoured by lions.”12
Locke sees the ideal civil society as that in which the legislative power is vested in the body of men called the senate, or parliament, which makes laws applicable to all persons equally and where no one by his own authority could avoid the force of the law, once made; nor by any pretence of superiority plead exemption from the law.
According to Locke, “[n]o man in civil society can be exempted from the laws of it; for if any man may do what he thinks fit and there be no appeal on earth, for redress or security against any harm he shall do, I ask, whether he not perfectly still in the state of nature, and so can be no part or member of that civil society; unless any one will say, the state of nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm.”13
The oracle most consulted and cited when dealing with the concept of separation of powers is the celebrated French jurist, Charles de Secondat, Baron De Montesquieu. Though not the author of this invaluable precept in the science of politics, he has the credit of at least displaying and recommending it most profoundly to the attention of mankind. Montesquieu was concerned that the nature of governance would guarantee people the greatest form of political liberty. In his celebrated treatise entitled “The Spirit of the Law,” written around 1748, he stated that: “[w]hen the legislative and executive powers are united in the same person or body, there can be no liberty because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”14 The purpose of this doctrine was succinctly captured by Maqutu J. in Lesotho Human Rights Alert Group and Others v Minister of Justice & Human Rights and Others,15 where he stated that “this doctrine to which all modern states aspire to, is really perceived as an anti-dote to despotism, oppression and arbitrariness that creeps into the State and its organs when all these powers are concentrated in the same hands.”16
The idea of guaranteeing liberty by separation of powers was fancied by the framers of most democratic constitutions, who divided governmental powers between the executive, the legislature and the judiciary. However, in certain respects, they also blended these powers together,17 which is a clear reflection of the impracticability of strict detachment of one arm of government from the other. Thus the doctrine has been described as an ideal to which states should aspire, but certainly not practicable in absolute terms; its relevance balances mainly on the emphasis of needing to provide adequate checks and balances within governmental systems.18
Inferences from some judicial pronouncements, however, convey the erroneous impression that there could be a strict separation of powers between the three arms of government. In People of Kapingamarangi v Pohnpei Legislature19 the Supreme Court of Pohnpei stated, inter alia:
A characteristic feature, and one of the cardinal and fundamental principles of the Pohnpei State Constitutional system, is that the governmental powers are divided among the three departments of this government, the legislative, executive, and judicial, and that each of these is separate from the others. The principle of separation of the powers of this government operates in a broad manner to confine legislative powers to the legislature, executive powers to the executive department, and those which are judicial in character to the judiciary. The legislature is to pass laws; the executive is to approve and execute them; and the judiciary is to expound and enforce them. The constitutional distribution of the powers of government was made, as mandated by the State law, . . . on the assumption by the people that several departments would be equally careful to use the powers granted for public good alone. Thus, the doctrine is that none of the several departments is subordinate, but that all are co-ordinate, independent, coequal, and potentially coextensive.
This position was reaffirmed by the South African Constitutional Court in National Treasury and Others v Opposition to Urban Tolling Alliance and Others20 where Moseneke DCJ emphasized that “[b]eyond the common law, separation of powers is an even more vital tenet of our constitutional democracy. This means that the Constitution requires courts to ensure that all branches of Government act within the law. However, courts in turn must refrain from entering the exclusive terrain of the Executive and the Legislative branches of Government, unless the intrusion is mandated by the Constitution itself.”21 In that case, the Court held that the South African National Roads Agency Limited (SANRAL) declaration of Gauteng Freeway Improvement Project (GFIP) roads as toll roads pursuant to s 27(1)(a)(i) of the SANRAL Act and approved by the Transport Minister is an executive decision made in accordance with an existing legislation and it would be an infraction on the concept of separation of powers for the Court to interdict such act. The Court emphasized that the balance of convenience enquiry when an interdict is sought to restrain the exercise of a constitutional power must now carefully probe whether and to which extent the restraining order will probably intrude into the exclusive terrain of another branch of Government. The enquiry must, alongside other relevant harms, give proper regard to what may be called the “separation of powers harm.”22
In its earlier decision in International Trade Administration Commission v SCAW South Africa (Pty) Ltd23 the Court had warned that “[w]here the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of government, courts may not usurp that power or function by making a decision of their preference. That would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but rather to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution.”24
This line of reasoning has also been adopted by the Lesotho courts in defining the theoretical25 aspect of this concept. In Swissbourgh Diamond Mines (Pty) v Military Council of Lesotho26 Cullinan CJ accepted that this concept forms part of the Lesotho jurisprudence in that “throughout the ever changing constitutional pattern of the Kingdom a golden threat (sic) of the separation of powers is always to be seen.” In Judicial Officers’ Association of Lesotho and Another v The Right Honourable The Prime Minister Pakalitha Mosisili NO and Others,27 Majara J reaffirmed that “[t]he Constitution further establishes the three arms of government being the legislature, the executive and the judiciary, all of which are governed under its different Chapters. To that end, the Legislature is governed under Chapter VI, the Executive under Chapter VIII whilst the Judiciary is governed under Chapter XI. It is our view that this constitutional arrangement exhibits the first step towards upholding the sacrosanct constitutional principle of separation of powers of the three branches of government.” Peete J had earlier, in the court’s decision in the same case,28 observed that the Lesotho Court of Appeal had in the case of Law Society of Lesotho v the Right Hon. The Prime Minister,29 in recognizing the principle of separation of powers, ruled that an acting appointment to the bench of the High Court of a serving public officer did not pass the constitutional muster in regards to separation of powers.30
A strict application of the doctrine would require that the appointment of the constituent members and functions of each arm of government be completely detached from the other arms of government. The legislature, for instance, should not appoint members of the executive, i.e., Parliament should not elect the President or the Prime Minister; and for the same reason the executive should not have a role in electing members of the legislature. Neither the executive nor the legislature should appoint members of the judiciary, for if they do the judiciary will lose its independence. Along the same lines, it goes without saying that judges should not appoint the executive.31 These political and judicial office holders should be appointed directly by the electorate and they should be accountable only to the electorate. This certainly is untenable, even in the most advanced democracies. Thus, it has been observed that:
There is probably no country in the world in which the doctrine of separation of powers is applied strictly and absolutely. There are not always clear dividing lines between administrative, legislative and judicial functions jurists have wasted oceans of ink and mountains of paper in trying to define those terms precisely and in a modern State there must be a great deal of co-operation and interaction between the Executive and the Legislature, in particular, if the States business is to be efficiently conducted.32
In most modern democracies, the three arms of government adopt cooperative and coordinated approaches in the discharge of their functions. The parliament, for instance, cannot include every detail required by every legislation; the executive arm must fill in the gaps using regulations. Hence, the executive arm exercises some law-making powers. The role of government has expanded so greatly that many decisions which affect people’s lives must be made quickly. Some of these decisions are more expediently made by administrative tribunals, established by and answerable to ministers. As a result, the executive branch has increasingly been given judicial powers. This is not necessarily undesirable, so long as the tribunal follows the basic standards of fairness laid down by the law and so long as the courts are able to review their decisions. As another example, it is generally recognized, that judges do not just interpret the law, they develop and adapt the law to take account of changing circumstances. In that way, they actually make law. This being the case, the judicial arm exercises some legislative functions; however, this power should not go beyond refining and developing existing laws.33
These governmental arrangements follow the currently accepted true interpretation of the doctrine of separation of powers, as proffered by James Madison. Madison did not interpret Montesquieu to mean that the departments (of government) ought to have no partial agency in, or control over, the acts of each other. In his interpretation, as indicated by his words, separation of power amounts to no more than the idea that where the whole power of one department is exercised by the same hand which possesses the whole power of another department, the fundamental principles of a free constitution are subverted.34
To further buttress this interpretation, Madison referred to the British constitution, which Montesquieu saw as a model or, in his own words, “as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system.”35 He observed that under that constitution, the legislature, executive, and judiciary are by no means totally separate or distinct from each other. The executive exercises some legislative powers, such as making treaties with foreign sovereigns, which when made have the force of legislative acts. All members of the judiciary department are appointed by the prime minister, and can be removed by him on the address of the two houses of parliament. The House of Lords, a legislative organ, exercises judicial powers in cases of impeachment of the prime minister, and is vested with supreme appellate jurisdiction in all other matters.36 Judges can attend and participate in legislative deliberations, although they do not have the right of vote. With these practical realities in mind, Maqutu J.’s description of this concept in Law Society of Lesotho v Ramodibedi NO and Others37 as not quite a British constitutional doctrine cannot be faulted. Indeed, Madison maintained that there must be some level of interconnectivity between these three arms for government to function effectively.38 What the doctrine preaches, as explained by Madison, is that “the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”39 How would that encroachment be effectually restrained? Madison believes that a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.40 Although the courts may try to impose such restraint, a despotic leader would always disregard court decisions, and with impunity. The real guard against encroachment is the willingness of the various arms of government to exercise restraint and operate within their constitutional limits.
The courts in Lesotho have, in spite of general observations on the application of the doctrine, as previously demonstrated, also recognised that power cannot be separated between the three arms of government in a water tight compartment. Peete J in Judicial Officers’ Association of Lesotho and Another v The Right Honourable The Prime Minister Pakalitha Mosisili NO and Others41 had observed that “in its purest form the doctrine of separation of powers is not very practical in today’s modern democratic governance. This is so for many reasons – firstly, under the Lesotho Constitution, the Executive (The King and the Prime Minister) have a clear role in the appointment of the Chief Justice who in turn is the Chairman of the Judicial Service Commission, has a role in the appointment of Judges. Secondly, the Government and Parliament provide all resources for the Judiciary.”42 Similarly, in Sole v Cullinan and Others43 J(A) Ramodibedi observed that a total independence of the judiciary (separation of powers) is impossible, as the judiciary does not normally control the funds which are necessary to enhance its independence and effectiveness. The budget for the judiciary is approved by the Legislature which, as he stated, does not always fully appreciate the needs of the judiciary and thus often cuts them mercilessly under the misguided perception that the judiciary is non-income-generating and consequently unimportant. Credence could be given to these assertions or otherwise faulted by closely examining the provisions of the Lesotho constitution on the three arms of government.
In Lesotho, the Constitution is fashioned closely along the Westminster concept of separation of powers, with, however, the peculiarity of a constitutional monarch whose powers cut across the functions of the three arms of government. The governmental powers are divided amongst the three arms of government, namely: the legislature, the executive and the judiciary. The legislature is provided for under Chapter VI of the Constitution in which it is referred to as the parliament. Section 54 establishes a parliament44 consisting of the King, a Senate and a National Assembly. The Senate consists of a body of principal chiefs and members appointed by the King on the advice of the Council of State.45 Section 56 provides for the National Assembly consisting of 80 elected members. The Constitution maintains an important distinction between the Senate and the National Assembly, by disqualifying senators from being elected to the National Assembly.46 The implication is that no one could simultaneously hold office as a senator and a member of the National Assembly.
The composition of the parliament is very instructive when viewed in the context of separation of powers: the King, a chief executive in his own right; a Senate comprised of the principal chiefs, who perform mostly executive functions in their respective communities; and eleven persons nominated by the King, who mostly owe allegiance to the King in the discharge of their legislative functions. In addition, the law making process requires the final assent of the King to give effect to such law.47 Furthermore, and perhaps more importantly, the Constitution imposes positive restrictions on parliamentary powers, as the parliament cannot make laws on certain areas without the consent of the Cabinet (an executive body), signified by a minister.48
Section 86 vests executive powers in the King, to be exercised by him through officers or authorities of the government of Lesotho. The King appoints the Prime Minister from among members of the National Assembly, by selecting the leader of the political party or coalition of political parties that wins the majority of the seats in the National Assembly.49 Other ministers are also appointed by the King, either from among members of the National Assembly or the Senate, as may be advised by the Prime Minister.50 The Constitution unequivocally sets forth that no person can hold the office of Prime Minister, or that of a minister, unless such person belongs to the National Assembly or is a senator, as the case may be.51 The Prime Minister and the ministers form the cabinet and are responsible to the Parliament,52 in which they also sit as members. Cabinet members who are field officers report back to the King on the conduct of the affairs of government.53 The expansive executive powers of the King are reaffirmed by section 100 of the Constitution, which confers power on the King to create offices, appoint persons to such offices and to terminate any such appointment.
Section 118(1) of the Constitution vests judicial powers in the courts and declares that in the performance of their functions, the courts shall be independent and free from interference but “subject only to the Constitution and any other law.”54 Notably, the Constitution does not confer similar independent status on the other arms of the government, and certainly no such independence is intended as seen from the interrelationships between the parliament and the executive. The Constitution does however, declare that judicial independence and freedom shall be subject to the provisions of the Constitution and any other law which places a bar on the freedom and qualifies the extent of independence to be enjoyed by the courts. In other words, there is no intention to set the judiciary completely apart from the other arms of government, under the pretence of projecting the doctrine of separation of powers or judicial independence. Subsequent provisions of the Constitution regarding appointment and removal of judicial officers lend credence to this assertion.
The Chief Justice, who is the head of the judiciary, is appointed by the King on the advice of the Prime Minister.55 Both appointing officers are top members of Parliament and the executive arm of government. The purpose which this provision is meant to serve is not difficult to understand. The King and the Prime Minister are expected to have close working relationships with the head of the judiciary as the third arm of the government. A similar approach is adopted in the appointment of the President of the Court of Appeal.56 This requirement is not applied to the appointment of other judges of the High Court or justices of the Court of Appeal.57
The Constitution, in its acclaimed furtherance of the independence of the judiciary, establishes the Judicial Service Commission which plays an important role in the appointment of the judges of the High Court and justices of the Court of Appeal, as well as the appointment and discipline of other judicial officers. The composition of the Commission itself is bereft of such independence, as would enable it to promote the independence of the third arm of the government. The Commission is an assemblage of members of the three arms of government, with overwhelming influence of the King. The Commission is comprised of a Chairman who is the Chief Justice, the head of the judiciary, appointed by the King; the Attorney General, a parliamentarian; the chairman of the Public Service Commission; and an appointed member, again, appointed by the King. Although the Constitution declares that the Commission shall be free of any extraneous influences in the exercise of its functions under the same,58 this certainly does not insulate the judiciary from the influences of the other arms of government which is untenable by the very composition of the Commission itself.59 With these analysis in mind, credence must be given to the judicial pronouncement in Sekoati and 48 Others v President of Court Martial and Two Others60 that it is important to bear in mind that no judicial system is entirely devoid of any relationship with the legislative or executive branches of government, and that an absolute separation of a given tribunal from the executive or legislative branch is impossible.
A water-tight separation of powers is simply unrealistic; the practical realities of the Lesotho Constitution lend credence to this inference. What Montesquieu advocated as an ideal principle that would ensure the greatest liberty for society is a design of government where one arm would be in a position to exercise some restraints on the exercise of the powers of another arm of government. In other words, there should be checks and balances to guard against excessive powers which often lead to dictatorship or despotic government.
In the People of Kapingamarangi v Pohnpei Legislature61 Justice Judah C. Johnny of the Supreme Court of Pohnpei alluded to this, when he said:
The true meaning of the doctrine of separation of powers is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments, and that no department ought to possess directly or indirectly an overruling influence over the others. This separation of powers of government is fundamental to the very existence of a constitutional government. . . . This division of governmental powers into executive, legislative, and judicial represents the most important principle of government declaring and guaranteeing the liberties of the people, and preventing the exercise of autocratic power.
The doctrine, in whichever manner it is viewed, has its obvious merits. It emphasizes the need for a state to have strong independent institutions in order to check arbitrary rule by the executive. The doctrine provides a yardstick against which constitutional proposals can be assessed in order to determine whether or not there will be adequate checks and balances within the governmental system to ensure that individual rights are protected.62 It helps to energise government and to make it more effective, by creating a healthy division of labour.63 It guarantees, to a significant extent, the functional specialisation of the different arms of government, and plays an important role in enhancing the protection of human rights, as well as a particular vision of democracy, based on the key democratic founding values of a constitution, namely accountability, responsiveness and openness.64 Analysis would argue that it is fair to say that constitutions which completely ignore the doctrine are usually considered bad, as one of the branches of government will be found to overshadow the others, or are at least liable to do so. That being said, constitutions in which the doctrine is observed are not necessarily good.65
The origin of the phrase ‘checks and balances’ is also attributed to Montesquieu.66 In a federal system of government which has governments operating at different levels of the society, such as federal, state/regional/provincial and local governments, ‘checks’ refers to the ability, right, and responsibility of each power to monitor the activities of the other(s), ‘balance’ refers to the ability of each entity to use its authority to limit the powers of the others, whether generally or in particular cases.67 Checks and balances also apply to different arms of government such as the legislative, executive and judicial arms. In fact, the impact of this principle is felt more often within different arms than levels of government. In Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa68 the Court set out a pragmatic distinction between the concept of separation of powers and checks and balances, as follows:
The principle of separation of powers, on the one hand, recognises the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers: the scheme is always one of partial separation.
‘Partial separation’ is what Madison referred to as the blending of powers together, the result is seen in one light as ‘separation of powers’ and in another as a system of ‘checks and balances,’ whereby each branch of government constrains, and is constrained by, the others.69
Framers of a constitution usually craft it in such a manner that each arm of government should be able to monitor and exercise some restraining influence on the powers of the other. But this is by no means an easy task; it requires public support, tradition, and deep rooted democratic culture to sustain the systems.70
The Lesotho constitutional arrangement, in this regard, is as such that while the executive could curtail legislative excesses through the powers of the King to withhold assent to bills passed by Parliament,71 the Parliament could, in the exercise of its legislative powers granted under the Constitution, pass laws nullifying executive actions and even judicial decisions. The Parliament also exercises oversight function over executive acts. This is made possible by the provision of the Constitution which makes members of the Cabinet responsible to the Parliament in the discharge of their responsibilities.72 This oversight function of the legislature is described by O’Regan as an important aspect of the separation of power;73 it ensures executive accountability and guards against misuse and abuse of power. Parliament could also legislate against judicial decisions, but this does not permit parliamentary intrusion on judicial discretion over adjudication on specific cases.74 However, the greatest guard against governmental excesses is the judiciary itself. Section 119(1) of the Constitution confers on the High Court unlimited original jurisdiction to hear and determine any civil or criminal proceedings and the power to review the decisions or proceedings of any subordinate or inferior court, court-martial, tribunal, board or officer exercising judicial, quasi-judicial or public administrative functions under any law, as well as such jurisdiction and powers, as may be conferred on it by the Constitution or by or under any other law. This power is highly extensive; it touches all facets of governmental actions, the relationships of the different arms of government, as well as relationships between the government and the citizens. These extensive powers of courts, as the guardians of constitutions, were alluded to by the South African Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others (“SARFU 1”)75 where the Court observed that while vesting in the judiciary the power to declare statutes and the conduct of the highest organs of state inconsistent with the Constitution and thus invalid, the Constitution “entrusts to this Court the duty of supervising the exercise of this power and requires it to consider every case in which an order of invalidity has been made, to decide whether or not this has been correctly done.” This supervisory role of the court does not entail unwarranted encroachment on the legislative or executive functions. The courts should loathe every encroachment on the powers of other arms of government which borders on politics; otherwise it would smear itself with the same, not so clean, political waters in which politicians are soaked, and as such betraying the public trust and confidence that sustain the courts as the guardian of the nation’s constitution.76 The limits within which the courts should operate must be such that they check any infringements of the express provisions set forth in a constitution.77 The basic requirement, as set down by the Court of Appeal in Matsaseng Ralekoala v Minister of Justice, Human Rights, Law and Constitutional Affairs and Others78 is that “the exercise of legislative and executive power is subject to the minimum threshold requirement of rationality. Consequently, a law must always have a rational connection to a legitimate governmental purpose.” Once this is satisfied, the courts should only sparingly interfere in the decisions of other arms of government. In Lesotho Human Rights Alert Group and Others v Minister of Justice & Human Rights and Others79 J.A. Maqutu warned that although:
This doctrine to which all modern states aspire to, is really perceived as an anti-dote to despotism, oppression and arbitrariness that creeps into the State and its organs when all these powers are concentrated in the same hands. That does not mean the courts should be indifferent to the existence and survival of other branches. The reason being that offenders cannot be brought to justice without Government. Civil judgments and criminal judgments cannot be given effect to without the existence of an effective government.
Procedural irregularities occurring in parliamentary or executive actions that inflict hardship on citizens, or infringe on constitutional rights, could form the basis for judicial intervention. In Speaker of the National Assembly v De Lille MP and Another80 a parliamentary decision suspending a member of parliament who accused other members of being spies was struck down by the Supreme Court of Appeal as being an infringement on freedom of expression guaranteed by the Constitution. Mahomed CJ said: “[t]he threat that a member of the Assembly may be suspended for something said in the assembly inhibits freedom of expression in the Assembly and must therefore adversely impact on that guarantee.”81 In Karabo Karabo Mohau and Others v The Principal, NULIS and Others,82 while reviewing the increase in school fees by the respondent, the Lesotho Court of Appeal stated that “[w]e are only concerned with whether, in seeking to increase the fees, the respondents followed the correct and appropriate procedural steps.”83 The increase was set aside on two grounds: that the length of notice of increase of fees given to the appellants was unreasonable, and that the increased fees did not receive the approval of the University Council before implementation, as required by the National University of Lesotho Act of 1992. The South Africa Court has, however, cautioned that, in determining what constitutes procedural fairness in a given case, a court should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively (a principle well recognised in the common law and that of other countries).84
This draws attention to the use or misuse, if not abuse, of interim orders by courts which hamper administrative functions. Interim orders are granted by courts, mostly against agencies of government, upon applications made ex parte by a party to judicial proceedings, again primarily before court processes are served on the opposing party. Such orders are ordinarily made in urgent situations to preserve the res or maintain the status quo which would, if not preserved, lead to an irreparable loss to the applicant. Interim orders are generally made for a short duration of time within which the opposing party is served the court process and given opportunity to be heard. Interim orders are known to have been granted by the courts in Lesotho by simply endorsing papers prepared by lawyers in their chambers, replete with errors, and bearing incoherent and inconsistent prayers which are hardly supported by evidence placed before the court. In O/C Military Police and Others v Eyob Belay Asemie85 the Lesotho Court of Appeal had no soft words for J. Mahase of the High Court for the absurdity, and obvious irregularities inherent in the granting of an ex parte order prohibiting any criminal trial being brought against the respondent for any conduct of the respondent preceding 15th August 2012.86 J.A. Hurt deprecated the proceedings in the following terms: “I only need to say that, in my career of more than forty years in the law, I have never seen a procedural step which, on its own, bristles with as many irregularities as the grant of this ex parte order. Mr Mdhluli, who appeared with Mr Maqakachane for the respondent, readily and properly acknowledged that the order was insupportable and I will say no more about it.”87 The Court described the approach adopted by the trial judge in analyzing the evidence placed before her, which led to the grant of the order, as based on “a preconceived presumption that everything the respondent had told the court was true.” The Court denounced such an approach as “a cardinal error in adjudication in any judicial function”, and observed that “[a]n objective assessment might, I think, have lifted the scales from her eyes.”88
Interim orders should be sparingly granted and only on close scrutiny of the evidence placed before the court, which must reveal a compelling need and not merely imaginary conceptions of an ambitious litigant backed by weak counsel who is unprepared to face the challenges from his opponent and seeks to short-circuit a rather strenuous judicial process and end up inflicting irreversible harm on the administrative process, with the advertent or inadvertent assistance of the courts. Whenever such an application is brought before the court, the court should always bear in mind its cardinal duty to observe the rule of audi alteram partem, and more importantly, the need to accord respect to administrative decisions the essence of which in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism89 the South African Constitutional Court stated, “is recognising the proper role of the executive within the Constitution.” The Court further cautioned that in reviewing administrative decisions:
[A] court should be careful not to attribute to itself superior wisdom in relation to maters entrusted to other branches of government. A court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the courts.
The doctrine of separation of powers is an ideal governmental scheme which every democratic government strives to attain. The doctrine abhors the concentration of governmental powers in one person and advocates a fair distribution of powers between different arms of government, so as to avoid despotism and ensure the greatest protection of the rights of the citizens. The emerging democracies have, following the popularization of this doctrine by Montesquieu in the 18th century, continued to strive to fashion this doctrine in such a manner as would suit their respective internal peculiarities.
Lesotho, as an emerging democratic government, has by its Constitution of 1993 evolved a model of separation of powers which in principle recognizes the existence of the three arms of government: the parliament, the executive and the judicature. However, in deferring to the people’s culture and tradition, the Constitution accords due recognition to the monarch whose powers revolve around the three arms of government, but ensures that such powers are not abused by defining the scope and laying down the parameters within which they may be exercised.
In recognition of the fact that the doctrine of separation of power does not entail absolute detachment of one arm of the government from the other, the Lesotho Constitution confers powers on the three arms of government in such a manner as would ensure cooperation and coordination in governance. Excesses are curtailed through checks and balances inherent in those provisions.
The courts in Lesotho have long assumed the role of the guardian of the Constitution and the protection of the rights of citizens, as provided for in the Constitution in the spirit of the preservation of the doctrine of separation of powers and judicial independence. Procedural irregularities and substantive excesses in the exercise of the executive and legislative powers have attracted judicial condemnation and nullification which are fearlessly expressed.
That said, there are also instances of judicial excesses. The use by the courts of interim orders made on ex parte applications to prevent, and sometimes, frustrate the smooth conduct of the business of the other arms of the government is a great cause for concern.90 Applications for interim orders should be closely scrutinized by the courts and granted sparingly. Judicial powers should not be exercised in such manner as would unduly intrude into, or stultify the effective functioning of the other arms of government. The judicial attitude should in principle be guided by the wisdom embodied in the expression of Cullinan CJ on what the concept of separation of powers entails. The Chief Justice stated that “[i]t is not a matter of the supremacy of Parliament, nor of the executive; neither is it a matter of supremacy of the judicature. None of them is supreme. It is the rule of law which is supreme, ensuring that each power is exercised within its proper limits.”91
The courts ought to bear in mind that the effective discharge of the responsibilities of the courts largely depends on the effectiveness of the other arms of government. There should be mutual respect and understanding, which is the true intention of the Constitution, by setting down provisions on the powers of the different arms of government in such a manner as would guarantee a coordinated discharge of government responsibilities to the nation.
1) See the Annexation Proclamation 14 of 1868 which declares as follows: “With a view to the restoration of peace and the future maintenance of tranquility and good government on the North Eastern Border of the Colony of the Cape of Good Hope, Her Majesty, the Queen, having been graciously pleased to comply with the request made by Moshesh, the Paramount Chief, and other Headmen of the Tribes of the Basutos, that the said tribe may be admitted into the allegiance of Her Majesty”. The effect of this was that the Basutos (as then known) became British subjects, and the land became British Territory. See Law Society of Lesotho v Honourable the Prime Minister of Lesotho and Another  LSCA 144 (3 September 1985) per Schutz, P., at 6–7.
2) See Proclamation 1 of 1884 which appointed the Resident Commissioner as the authority responsible for “peace, order and good government” and s1 of Proclamation 2B of 1884 confers power on the Resident Commissioner to hold a Court and to exercise jurisdiction and adjudicate upon all causes civil or criminal in the protectorate.
6) See ibid., paras 8–9 for a detailed account approached from the perspective of the concept of judicial independence in Lesotho which is an inseparable arm of the doctrine of separation of powers.
7) See Law Society of Lesotho v Honourable the Prime Minister of Lesotho and Another  LSCA 144 (3 September 1985) per Schutz, P., at 9.
9) Available online at http://en.wikipedia.org/wiki/Separation_of_powers (accessed on 25 September 2012).
10) Ibid. See S. Ellmann, ‘The Separation of Powers in a Post-Apartheid South Africa’, 8 The American University Journal of International Law & Policy (1993), 455–482, at p. 461 where the writer stated that “today the phrase ‘separation of powers’ calls to mind . . . the divisions of powers between the three branches of . . . government, the executive, legislative, and judicial branches.” Waliggo referred to these three branches of government metaphorically as “the three cooking-pot supporting stones which make every meal possible.” He stated that once they are well organized to function in the interest of the people as a whole, the common good of the nation is served and the country develops in stability and joy. See J.M. Waliggo, ‘Separation of powers’, available online at http://www.federo.com/index.php?id=196 (accessed 9 October 2012).
11) John Locke, Two Treatises of Government (1690), available online at http://epublish.biz/pdf/Two_Treatises_of_Government.pdf, at p. 44 (accessed 25 September 2012). Lesotho opted for the existing constitutional arrangement partly in a bid to free itself from the shackles of absolutism and tyranny of the monarchy by circumscribing the powers of the monarch in the constitution and guaranteeing greater freedom to the people. See Section 44(2) of the 1993 Constitution which declares ex abundantly that the King shall do all things that belong to his office in accordance with provisions of this constitution and of all other laws for the time being in force and shall faithfully comply with the terms of the oath of the office of King set out in schedule 1 to this constitution.
14) See Charles de Secondat, Baron de Montesquieu, The Spirit of the Law, public domain edition, trans. Thomas Nugent, revised by J.V. Prichard (G. Bell & Sons, London, 1914), available online at http://www.constitution.org/cm/sol.htm (accessed 1 October 2012).
16) See also Law Society of Lesotho v Ramodibedi NO and Others (Constitutional Case No. 1 of 2003)  LSHC 89 (15 August 2003) per Magutu J., at para. 8 where he stated that the primary objective of Baron de Montesquieu was to influence French constitutional thinking which tolerated despotism.
18) See ‘The Doctrine of Separation of Powers its Values and Limitations’ available online at http://www.thezimbabwean.co.uk/news/35650/the-doctrine-of-separation-of-powers--its-values-and-limitations.html (accessed 23 October 2012).
22) At para. 47, emphasis added. This judicial coinage was explained by the court in the latter part of the judgment where the Court said: “[w]hen it evaluates where the balance of convenience rests, a court must recognise that it is invited to restrain the exercise of statutory power within the exclusive terrain of the Executive or Legislative branches of Government. It must assess carefully how and to what extent its interdict will disrupt executive or legislative functions conferred by the law and thus whether its restraining order will implicate the tenet of division of powers. Whilst a court has the power to grant a restraining order of that kind, it does not readily do so except when a proper and strong case has been made out for the relief and, even so, only in the clearest of cases.” At para. 55.
23) (CCT 59/09)  ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (9 March 2010) per Moseneke DCJ at para. 95. See also Doctors for Life International v Speaker of the National Assembly and Others  ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC).
24) In an earlier decision of the Court in Doctors for Life International v Speaker of the National Assembly and Others  ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC), at para. 37 J. Ngcobo cautioned that “[c]ourts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution. See also Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa  ZACC 26; 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) at para. 110.
25) ‘Theoretical’ in the sense of according literal meaning to the exert words, while the practical realities as also recognised by the courts reflect a different perception of the concept.
30) Suffices to observe that that case dwelt more on the concept of judicial independence, a concept often interwoven with the principle of separation of powers but enjoys more specificity than the latter which is a more generalised idea. The close link between both concepts informed the statement of J. Majara in Judicial Officers’ Association of Lesotho’s case supra that “the two principles go hand in glove and the one cannot exist without the other.” This statement should not be construed as implying that both concepts bear the same practical realities. See also Sole v Cullinan and Others (Constitutional Case No. 3/2002)  LSHC 9 (1 January 2003), Sekoati and 48 Others v President of Court Martial and Two Others 2001 (7) BCLR 750.
31) See ‘The Doctrine of Separation of Powers its Values and Limitations’ available online at http://www.thezimbabwean.co.uk/news/35650/the-doctrine-of-separation-of-powers--its-values-and-limitations.html (accessed 23 October 2012).
34) J. Madison, ‘The Federalist No 48’, available online at http://thomas.loc.gov/home/histdox/fed_48.html (accessed 9 October 2012).
36) This has however undergone some changes in recent time with the creation of the UK Supreme Court in October 2009.
38) In his words “unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.” See J. Madison, supra note 34.
42) The judge proceeded to add, “and thirdly, it has been recognized that the (sic) while enjoying the judicial independence, the judiciary does not exist in a “glass house” or “ivory tower.” It must suffer the criticism of the common man, be responsible and accountable to the general populace as well as be responsive to its needs and aspirations especially in the socio-economic scenario of the present day Lesotho. Emphasis his Lordship’s, at para. 44.
43) (Constitutional Case No. 3/2002)  LSHC 9 (1 January 2003), at para. 52. See also Sekoati and 48 Others v President of the Court Martial and 2 Others C of A (CIV) No. 18 of 1999 2001 (7) BCLR 750 at 761 where the Court pointed out that no judicial system is entirely devoid of any relationship with the legislative or executive branches of government, and that an absolute separation of a given tribunal from the executive or legislative branches is impossible.
47) Ibid., Section 78(1). Sections 82 and 83 of the Constitution also confer on the King the power of summoning, prorogation and dissolution of parliament.
48) Ibid., Section 79 provides that “Except with the consent of the Cabinet signified by a Minister, neither House of Parliament shall – (a) proceed upon any bill (including any amendment to a bill) that, in the opinion of the person presiding, makes provision for any of the following purposes – (i) for the imposition of taxation or the alteration of taxation otherwise than by reduction; (ii) for the imposition of any charge upon the Consolidated Fund or any other public fund of Lesotho or the alteration of any such charge otherwise than by reduction; (iii) for the payment, issue or withdrawal from the Consolidated Fund or any other public fund of Lesotho of any moneys not charged thereon or any increase in the amount of such a payment, issue or withdrawal; or (iv) for the composition or remission of any debt due to the Government of Lesotho; or
(b) proceed upon any motion (including any amendment to a motion) the effect of which, in the opinion of the person presiding, would be to make provision for any of those purposes”.
49) Ibid., Section 87(2). The King could also remove the Prime Minister as provided in Section 87(5) of the Constitution.
53) Ibid., Section 92. Section 89 confers power on the King to assign duties to the members of the cabinet.
55) Ibid., Section 120(1). See also Section 121(3)–121(7) on the significant roles of the King and the Prime Minister in the removal of the Chief Justice and other judges of the High Court. Some of these provisions are also contained in the High Court Act No 5 of 1978 suggesting that they are not entirely new.
56) See ibid., Section 124(1). See also Section 125(3)–125(7) on the removal of the President and Justices of the Court of Appeal.
59) Cf Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa 1996  ZACC 26; 1996 (4) SA 744 at 816(CC) where the South African Constitutional Court stated that the mere fact that the executive makes or participates in the appointment of Judges is not inconsistent with the doctrine of separation of powers or with judicial independence. The court obviously overlooked the weight of pressure on the judge when the appointer is a party to the case before the judge.
62) See ‘The Doctrine of Separation of Powers its Values and Limitations’, available online at http://www.thezimbabwean.co.uk/news/35650/the-doctrine-of-separation-of-powers--its-values-and-limitations.html (accessed 23 October 2012).
63) C.R. Sunstein, Designing Democracy: What Constitutions Do (Oxford University Press, Oxford, 2001), at p. 98.
64) See K. O’Regan, ‘Checks and Balances Reflections on the Development of the Doctrine of Separation of Powers under the South African Constitution’, 8 Potchefstroom Electronic Law Journal (2005), 1–32, at p. 5.
65) See ‘The Doctrine of Separation of Powers its Values and Limitations’ available online at http://www.thezimbabwean.co.uk/news/35650/the-doctrine-of-separation-of-powers--its-values-and-limitations.html (accessed 23 October 2012).
66) See http://en.wikipedia.org/wiki/Separation_of_powers#Checks_and_balances (accessed 2012. See also New World Encyclopedia available online at http://www.newworldencyclopedia.org/entry/Checks_and_balances, accessed on 20/11/12.
67) See ‘The Separation of Powers’, available online at http://www.newworldencyclopedia.org/entry/Checks_and_balances#The_separation_of_powers, accessed on 20/11/12.
68) 1996  ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) at para. 109. See also Nyathi v Member of the Executive Council for the Department of Health, Gauteng and Another  ZACC 8; 2008 (5) SA 94 (CC); 2008 (9) BCLR 865 (CC) at para. 88; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others  ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) at para. 46; Pharmaceutical Manufacturers Association of SA and Another: In Re Ex Parte President of the Republic of South Africa and Others  ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para. 45.
70) See O’Regan, supra note 64, at p. 2, where the writer observed that there is no universally accepted system for achieving the separation of powers. The system developed in each country depends on a range of factors including the conception of democracy adopted in that country, social, political and economic forces, as well as the history of governmental institutions.
74) See Section v Dodo 2001 (5) BCLR 423 (CC); 2001 (3) SA 382 (CC) at para. 44 where J. Ackermann held that the legislature’s powers are decidedly not unlimited. Legislation is by nature general. It cannot provide for each individually determined case. Accordingly, such power ought not, on general constitutional principles, wholly to exclude the important function and power of a court to apply and adapt a general principle to the individual case.
76) In South African Association of Personal Injury Lawyers v Heath 2001 (1) BCLR 77 (CC); 2001 (1) SA 883 (CC), the court held that it was important that the judiciary be seen to be independent because otherwise the judiciary’s ability to properly discharge its functions under the Constitution might be threatened. See also O’Regan, supra note 73, at p. 24.
77) See Judicial Officers’ Association of Lesotho and Another v Right Honourable the Prime Minister Pakalitha Mosisili N O and Others  LSHC 150 (4 July 2006) at para. 121 where the court held that important matters of government policy traditionally are not for the courts to determine – that paramount function being the prerogative of a democratically elected government and it is not for the courts of law to criticize or go behind the issues of national policy because such exercise or endeavour may bring courts into the arena of politics. An important national policy can however come under a spotlight and scrutiny if the constitutionality of the policy in question is challenged in court. See also Attorney General vs Makesi 1999–2000 LLR (LB) 306.
79)  LSCA 106 (14 June 1994) at para. 27–28. See also Minister of Health v Treatment Action Campaign  ZACC 15; 2002 (5) SA 721 at 755 (C–F) where South African Constitutional Court observed that “although there are no bright lines that separate the roles of the Legislature, the Executive and the Courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation.” Such deference by the Court to the exercise of powers by the other organs of government was shown in Ramafole v National University of Lesotho (CIV/APN/156/80)  LSHC 50 (29 October 1980) per Cotran CJ at 15 where the court after finding that the student’s examination results were wrongly withheld, held inter alia: “I have been asked to make an order that the date of Miss Ramafole’s examination results be made “retroactive” so that she can be “deemed” to have graduated, if she had passed, on the 27th September 1980. I am not sure I have such powers. The conferring of degrees is a matter for Senate and is not fortunately a judicial function, not yet any way. I can only order that her examination results be now published. If she had passed and Senate is disposed to give her a degree it can be sent by post. If she wants glory she may have to wait for the next ceremony in 1981.”
84) See Premier, Mpumalanga v Executive Committee of State-aided Schools, Eastern Transvaal 1999 (2) BCLR 151 (CC); 1999 (2) SA 91 (CC) at para. 41.
86) The specific prayer contained in the ex parte application is as follows: “[n]o criminal charge shall ever be preferred by 3rd Respondent and/or officers subordinate to him against Applicant on the basis of Applicant’s conduct preceding the order of the 15 August 2012.”
90) See O/C Military Police and Others v Eyob Belay Asemie  LSCA 49 (19 October 2012) where the Court of Appeal condemned the granting of an interim order couched in such a manner as to prevent criminal proceedings being brought against the respondent.
John Locke, Two Treatises of Government (1690), available online at http://epublish.biz/pdf/Two_Treatises_of_Government.pdf, at p. 44 (accessed 25 September 2012). Lesotho opted for the existing constitutional arrangement partly in a bid to free itself from the shackles of absolutism and tyranny of the monarchy by circumscribing the powers of the monarch in the constitution and guaranteeing greater freedom to the people. See Section 44(2) of the 1993 Constitution which declares ex abundantly that the King shall do all things that belong to his office in accordance with provisions of this constitution and of all other laws for the time being in force and shall faithfully comply with the terms of the oath of the office of King set out in schedule 1 to this constitution.
See Ellmann, supra note 10, at p. 456.
1991–96 LLR 1481.
See Ellmann, supra note 17, at p. 456, referring to Madison, supra note 34, at p. 308.
See O’Regan, supra note 64, at p. 2, where the writer observed that there is no universally accepted system for achieving the separation of powers. The system developed in each country depends on a range of factors including the conception of democracy adopted in that country, social, political and economic forces, as well as the history of governmental institutions.
See O’Regan, supra note 70, at p. 8.