The concept of judicial activism in Lesotho has become a contentious issue, with politicians accusing the judiciary of overstepping its bounds. However, the definition of judicial activism is often loosely used, implying that judges are substituting their personal preferences for the law. A more nuanced understanding of judicial activism is necessary, one that distinguishes between judges applying the Constitution and exceeding their authority. In Lesotho, the courts have made several significant decisions, including striking down a state of emergency and a constitutional amendment.
In September 2022, the High Court, sitting as the Constitutional Court, declared unconstitutional the state of emergency used to recall a dissolved Parliament and pass reform bills. The Court of Appeal confirmed this order within a week. The courts have also struck down the Ninth Amendment, which had changed the rules governing a prime minister who loses a vote of no confidence. Furthermore, in March, the Constitutional Court declared that the National Assembly acted unconstitutionally when it voted down the Conflict of Interest Bill, directing Parliament to pass such a law within a fixed period.
The 1993 Constitution of Lesotho declares itself the supreme law of the land, with any other law inconsistent with it being void to the extent of the inconsistency. Parliament has amended the Constitution several times since 1993 but has left this clause intact. A judge who applies this clause is simply doing what the drafters instructed. The Court of Appeal has noted that the Constitution places on an independent judiciary the duty to construe and apply the Constitution. This duty is essential in ensuring that the Constitution is upheld.
The conflict of interest judgment has sparked debate, with some arguing that the court overstepped its authority. The Constitution has required a law to stop members of Parliament from profiting from government contracts for three decades. Successive Parliaments failed to pass such a law, and when the National Assembly finally voted a bill down, the court called it a misapprehension that Parliament can refuse to do what it is obligated to do by the Constitution. The court's order tells Parliament that it must act, leaving the content of the law to Parliament.
The Ninth Amendment case is where critics have their strongest argument, with the Court of Appeal relying on the basic structure doctrine. This doctrine, first set out by India's Supreme Court in 1973, holds that some features of a constitution sit beyond the reach of amendment altogether. However, the Constitution of Lesotho contains no list of which features are basic, leaving it to the judges to decide. This has raised concerns about the potential for judicial activism.
The courts did not go looking for these cases, but citizens, lawyers, and political parties brought them because the political route had failed. The reforms recommended by SADC in 2016 are still unfinished, and the conflict of interest law waited thirty years. When Parliament leaves a constitutional duty undone, the dispute does not disappear but moves to the only branch of government that cannot decline to hear it. This shift carries a cost for the judiciary itself, which becomes a political target.
There is a simple test for anyone who raises the charge of judicial activism in Lesotho: would you call the same judgment activist if it had gone the other way? If the answer depends on who won, the complaint is about the result, and the word adds nothing. The cure for judicial activism, where it exists, is legislative activity. A Parliament that passes the laws the Constitution requires and changes the Constitution only through the procedure the Constitution sets leaves the courts with little to decide.
Key points
- The courts have been filling the void left by Parliament in Lesotho, making significant decisions that have sparked debate on judicial activism.
- The definition of judicial activism is often loosely used, implying that judges are substituting their personal preferences for the law.
- The cure for judicial activism, where it exists, is legislative activity.
