{"id":158234,"date":"2020-03-12T10:47:39","date_gmt":"2020-03-12T08:47:39","guid":{"rendered":"http:\/\/www.myza.co.za\/what-lesothos-constitution-says-about-immunity-for-a-sitting-prime-minister-the-conversation\/"},"modified":"2020-03-12T10:47:39","modified_gmt":"2020-03-12T08:47:39","slug":"what-lesothos-constitution-says-about-immunity-for-a-sitting-prime-minister-the-conversation","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/what-lesothos-constitution-says-about-immunity-for-a-sitting-prime-minister-the-conversation\/","title":{"rendered":"What Lesotho’s constitution says about immunity for a sitting prime minister | The Conversation"},"content":{"rendered":"

What Lesotho’s constitution says about immunity for a sitting prime minister<\/a>: <\/p>\n

Lesotho Prime Minister Tom Thabane and his new wife, Maesiah, at the Magistrate Court in Maseru. <\/span> AFP-Getty Images\/Molise Molise<\/span><\/span><\/figcaption><\/figure>\n

The constitution of Lesotho has come under international scrutiny over an unusual question: does it give the prime minister immunity from prosecution? <\/p>\n

Previously, constitutional questions that attracted attention in relation to the tiny kingdom landlocked by South Africa orbited around elections, the appointment and dismissal of security chiefs and the dissolution of government. <\/p>\n

The question of immunity has arisen against an intriguing backdrop. In January, Lesotho police announced that they had concluded investigations into the murder of Lipolelo Thabane (58), the estranged wife of Prime Minister Tom Thabane (89). She was shot dead in 2017, two days before his inauguration as prime minister. He was, at the time, involved in a relationship with the woman who he was later to marry. <\/p>\n

In February his new wife, Maessaiah Thabane (42), was charged with the murder of Lipolelo Thabane. Then, in a surprising turn of events, Thabane was later also charged for the murder. <\/p>\n

The expectation was that when he appeared at the Maseru Magistrate Court he would be charged after which he would have his say on the validity or otherwise of the charge. <\/p>\n

But this didn\u2019t happen. <\/p>\n

Instead, his lawyer argued that Thabane could not be prosecuted because, under the country\u2019s constitution, he enjoyed legal immunity as a sitting prime minister. He argued that the issue be referred to the High Court to decide on the immunity issue. In terms of the country\u2019s constitution (Section 128(1)), this issue can only be settled by the High Court. <\/p>\n

The magistrate agreed to refer the matter to the High Court. When adjudicating on constitutional matters, the High Court sits as a constitutional court with a panel of no less that three judges. However, the High Court\u2019s decisions can be sent to the Court of Appeal for determination. The Court of Appeal is the final arbiter. <\/p>\n

Lesotho\u2019s constitutional framework<\/h2>\n

Lesotho\u2019s constitution is a prototype of liberal constitutions bestowed on a host of African countries after they gained independence from Britain. In Lesotho\u2019s case, it adopted a new constitution in 1993. This document was a mirror-image of the constitution adopted in 1966 after independence. <\/p>\n

One of the key principles of liberal constitutionalism is that of equality in general, and equality before the law in particular. This is reflected in Section 19 of the kingdom\u2019s constitution. Furthermore, Lesotho\u2019s constitution provides for equality in several other sections such as sections 12, 18 and 26.<\/p>\n

In its broadest sense, equality before the law subjects all people to the law, regardless of status. But, as a relic of the Westminster constitutional design, Lesotho\u2019s constitution still retains the antiquated doctrine of monarchical immunity. It posits that the King, or any person exercising the powers of his office, will be immune from criminal prosecution for any acts done by him in a private or official capacity.<\/p>\n

But there is no provision in the constitution that extends legal immunity to the prime minister or any other person. This is the case despite the fact that most of the old monarchical prerogatives \u2013 like the dissolution and prorogation of parliament \u2013 have effectively shifted to the prime minister.<\/p>\n

Therefore it is apparent that in terms of the constitution, only the King enjoys legal immunity. <\/p>\n

As such, in view of the doctrine of equality before the law, the exception granted to the King will be interpreted very narrowly and restrictively by the High Court. It will clearly be an affront to the doctrine of equality if the exception could be interpreted broadly. <\/p>\n

Colonial legacy<\/h2>\n

One of the enduring legacies of British colonialism in Africa is that when the newly-independent countries drafted their new constitutions, most of them retained the antiquated notion that<\/p>\n

\n

the King can do no wrong.<\/p>\n<\/blockquote>\n

This notion has been enshrined in many African constitutions. <\/p>\n

In the decades since countries became independent, a number of African countries have extended this right to protect presidents, as heads of states and governments, against legal suits, albeit in varying degrees. <\/p>\n

The modern justification for legal immunity for heads of government is that it is undesirable for a head of state to be hauled before the courts, while he is supposed to focus on matters of public interest. <\/p>\n

The proponents of this view also contend that it borders on offending the principle of separation of powers when the judiciary is seen to be \u201ctossing\u201d the head of another equal branch of government before the courts of law.<\/p>\n

These justifications for immunity notwithstanding, the emerging wave of scholarship in Africa is that legal immunity for heads of government is an affront to everything that modern constitutionalism stands for.<\/p>\n

These include accountability, rule of law, equality, respect for human rights, constitutionality and even separation of powers.<\/p>\n

Looking to the future<\/h2>\n

It remains to be seen whether Lesotho\u2019s High Court \u2013 sitting as the Constitutional Court \u2013 will uphold the prime minister\u2019s immunity argument. <\/p>\n

What is palpably clear, though, is that in terms of Lesotho\u2019s constitution the legal immunity enjoyed by the King does not extend to the prime minister. <\/p>\n

If the court decides to uphold his claim, it will be for reasons other than the express provisions of the constitution.<\/p>\n

\"The <\/p>\n

Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.<\/span><\/em><\/p>\n

Source:<\/strong> The Conversation \u2013 Articles (AFRICA)<\/a><\/small>
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Read more on The Conversation<\/a>.<\/p>\n

Join the fun:<\/strong> Add Your event<\/a> | Submit a Press Release<\/a> | Add your listing<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

What Lesotho’s constitution says about immunity for a sitting prime minister: Lesotho Prime Minister Tom Thabane and his new wife, Maesiah, at the Magistrate Court in Maseru. AFP-Getty Images\/Molise Molise The constitution of Lesotho has come under international scrutiny over an unusual question: does it give the prime minister immunity from prosecution? Previously, constitutional questions […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4584],"tags":[3678,1548,8890,27192,6905,5695,6123,3687,5652],"class_list":{"0":"post-158234","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-africa-news-2","7":"tag-about","8":"tag-constitution","9":"tag-conversation","10":"tag-immunity","11":"tag-lesothos","12":"tag-minister","13":"tag-prime","14":"tag-says","15":"tag-sitting","16":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/158234","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=158234"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/158234\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=158234"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=158234"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=158234"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}