Towards constitutionalisation of Lesotho's private law through horizontal application of the Bill of Rights and judicial subsidiarity

[摘要] English: The Constitution of Lesotho is a product of the two-year deliberative discussions between 1990 and 1992. With this relatively transformative constitutional document, Lesotho sought to break away from the harsh consequences of a century-long British colonial imperialism and domination, as well as more than two decades of authoritarian and military rule. The latter period was characterised by political intolerance, suspension of constitutions, insurgencies, sporadic violence and brutality, the introduction of draconian legislation and denial and violations of basic human rights.The Constitution therefore provided for the twin transformative tools of the horizontal application of the Bill of Rights and the decentralised constitutional review as the cradle for the constitutionalisation project that was to be carried out in the new constitutional era. The horizontal application of the Bill of Rights means that every private actor is entitled to rely on the Bill of Rights in his or her private law disputes with another private actor. The doctrine further lays down constitutional duties for the courts not only to protect the fundamental rights and freedoms of private actors, but also not to infringe upon those rights and freedoms. On the other hand, the decentralised constitutional review is looked at through the principle of subsidiarity. This is a structural principle that not only fragments and organises power and authority between the superordinate and the subordinate authorities that function in the same hierarchical order; the principle further imposes duties on the superordinate authority to support and assist the subordinate authority where the latter cannot discharge its function effectively and efficiently.Looking at the structure of the Constitution, the constitutional powers as well as the functional relationship between the High Court and the subordinate courts in Lesotho (Magistrate Courts, Central and Local Courts, Judicial Commissioner's Court and specific Tribunals with judicial power), the constitutional review framework of Lesotho is decentralised. It is structured in the manner of the American model of constitutional review and not the European prototype, which concentrates the constitutional review powers in the specialised court, the Constitutional Court, thus excluding the ordinary courts from the exercise of constitutional jurisdiction. Consequently, all subordinate courts in Lesotho have constitutional jurisdiction to control the constitutionality of private law and conduct as well as to develop common law and customary law to be in conformity with the Constitution. The effect �?the horizontal effect �?would be the constitutionalisation of all private law in Lesotho and the attainment of constitutional justice.Notwithstanding this, the constitutional review practice of the courts in Lesotho is inconsistent with the above constitutional review framework. Not only have the subordinate courts remained dormant in the exercise of constitutional jurisdiction; through the trilogy of cases: Morienyane, Chief Justice and Mota, constitutional jurisdiction of the High Court and the subordinate courts has been excised and withered. Consequently, both the High Court and the subordinate courts have been excluded from exercising constitutional jurisdiction, with the High Court being able to do so only in direct, and not indirect, constitutional review proceedings. In the final analysis, the constitutional review has taken up the Continental model and the Bill of Rights is now verticalised.While a number of factors account for these trajectories, the constitutional review practice has not only affected the general administration of justice but also banished the overwhelming majority of the people of Lesotho to the margins of constitutional justice as a result that private law is shielded from the influence of the Bill of Rights. This study seeks to calibrate the constitutional review practice with the constitutional review framework.

[发布机构] University of the Free State