Lesotho 1993 Constitution (reviewed 2018) - Page 11 of 19

Table of Contents

CHAPTER XI. THE JUDICATURE

Part 1. The Judiciary

118. The Judiciary

The judicial power shall be vested in the courts of Lesotho which shall consist of–
1. a Court of Appeal;
2. a High Court;
3. Subordinate Courts and Courts-martial;
4. such tribunals exercising a judicial function as may be established by Parliament.
The courts shall, in the performance of their functions under this Constitution or any other law, be independent and free from interference and subject only to this Constitution and any other law.
The Government shall accord such assistance as the courts may require to enable them to protect their independence, dignity and effectiveness, subject to this Constitution and any other law.

Part 2. The High Court

119. Establishment of High Court

There shall be a High Court which shall have 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 and such jurisdiction and powers as may be conferred on it by this Constitution or by or under any other law.
The judges of the High Court shall be the Chief Justice and such number, of other judges (hereinafter referred to as “the puisne judges”) as may be prescribed by Parliament:Provided that the office of a puisne judge shall not be abolished while there is a substantive holder thereof.
The High Court shall be a superior court of record and, save as otherwise provided by Parliament, shall have all the powers of such a court.
The High Court shall sit in such places as the Chief Justice may appoint.

120. Appointment of judges of High Court

1. The Chief Justice shall be appointed by the King acting in accordance with the advice of the Prime Minister.
2. The puisne judges shall be appointed by the King, acting in accordance with the advice of the Judicial Service Commission.

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1. A person shall not be qualified to be appointed as a judge of the High Court unless–
  1. he holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in any country outside the Commonwealth that may be prescribed by Parliament or a court having jurisdiction in appeals from such a court; or
  2. he holds one of the specified qualifications and has held one or other of those qualifications for a total period of not less than five years.
2. In this subsection “the specified qualifications” means the professional qualifications specified by the Legal Practitioners Act 1983, or by or under any law amending or replacing that Act, one of which must be held by any person before he may apply under that Act, or under any such law, to be admitted as a legal practitioner in Lesotho.
If the office of Chief Justice is vacant or the Chief Justice is for any reason unable to exercise the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding that office has resumed those functions, as the case may be, they shall be exercised by such one of the judges of the Court of Appeal or the puisne judges or such other person qualified to be appointed as a judge of the High Court as the King, acting in accordance with the advice of the Prime Minister, may appoint. Before rendering advice to the King for the purposes of this subsection the Prime Minister shall consult the Chief Justice if he is available:Provided that–
1. a person may be appointed under this subsection notwithstanding that he has attained the age prescribed for the purposes of section 121(1) of this Constitution; and
2. a person appointed under this subsection may, notwithstanding the assumption or resumption of the functions of the office of Chief Justice by the holder of that office, continue to act as Chief Justice for so long thereafter and to such extent as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him previously thereto.
If the office of any puisne judge is vacant or if any such judge is appointed to act as Chief Justice or is for any reason unable to perform the functions of his office or if the Chief Justice advises the King that the state of business in the High Court so requires, the King, acting in accordance with the advice of the Judicial Service Commission, may appoint a person who is qualified to be appointed as a judge of the High Court to act as a puisne judge of that Court:Provided that a person may act as a judge notwithstanding that he has attained the age prescribed for the purposes of section 121(1) of this Constitution.
Any person appointed under subsection (5) to act as a puisne judge shall, subject to the provisions of section 121(7) of this Constitution, continue to act as judge for the period of his appointment or, if no such period is specified, until his appointment is revoked by the King, acting in accordance with the advice of the Judicial Service Commission:Provided that, notwithstanding the expiration of the period of his appointment or the revocation of his appointment, he may thereafter continue to act as a puisne judge for so long as necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him previously thereto.

121. Tenure of office of Chief Justice and other judges of High Court

Subject to the provisions of this section, a person holding the office of Chief Justice or other judge of the High Court shall vacate that office when he attains the prescribed age.
Notwithstanding that he has attained the age prescribed for the purposes of subsection (1), a person holding the office of Chief Justice or other judge of the High Court may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him before he attained that age.
The Chief Justice and any other judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
The Chief Justice and any other judge of the High Court shall be removed from office by the King if the question of his removal has been referred by the King to a tribunal appointed under subsection (5) and the tribunal has advised the King that the Chief Justice or the judge ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Prime Minister or, in the case of a puisne judge, the Chief Justice represents to the King that the question of removing a judge under this section ought to be investigated, then–
1. the King shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected in accordance with the provisions of subsection (6) from among persons who hold or have held high judicial office; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the King and advise the King on what action is to be taken in relation to the Chief Justice or other judge.
When the question of removing the Chief Justice is to be investigated the members of the tribunal shall be selected by the Prime Minister, and when the question of removing a puisne judge is to be investigated they shall be selected by the Chief Justice.
If the question of removing the Chief Justice or a judge from office has been referred to a tribunal under subsection (5), the King, acting in accordance with the advice of the Prime Minister in the case of the Chief Justice and acting in accordance with the advice of the Chief Justice in the case of a puisne judge, may suspend the Chief Justice, or as the case may be, the judge, from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal advises the King that the Chief Justice or the judge should not be removed from office.
The prescribed age for the purposes of subsection (1) is the age of seventy-five years or such other age as may be prescribed by Parliament:Provided that an Act of Parliament, to the extent to which it alters the prescribed age after the appointment of a person to be Chief Justice or judge of the High Court, shall not have effect in relation to that person unless he consents that it should have effect.

122. Oath by judges of High Court

Before entering upon the duties of his office, the Chief Justice and a puisne judge shall take and subscribe such oath for the due execution of his office as may be prescribed by Parliament.

Part 3. The Court of Appeal

123. Establishment of Court of Appeal

There shall be for Lesotho a Court of Appeal which shall have such jurisdiction and powers as may be conferred on it by this Constitution or any other law.
The judges of the Court of Appeal shall be–
1. the President;
2. such number of Justices of Appeal as may be prescribed by Parliament; and
3. the Chief Justice and the puisne judges of the High Court ex officio.
The office of a Justice of Appeal shall not be abolished while there is a substantive holder thereof.
The Court of Appeal shall be a superior court of record and, save as otherwise provided by Parliament, shall have all the powers of such a court.
The Court may, in accordance with any directions issued from time to time by the President, sit in Lesotho or elsewhere to dispose of any matter in relation to an appeal, not involving the decision of the appeal, and such matter may be disposed of by a single judge.

124. Appointment of judges of Court of Appeal

1. The President shall be appointed by the King on the advice of the Prime Minister.
2. The Justices of Appeal shall be appointed by the King, acting in accordance with the advice of the Judicial Service Commission after consultation with the President.

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1. A person shall not be qualified to be appointed as a Justice of Appeal unless–
  1. he holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in any country outside the Commonwealth that may be prescribed by Parliament or a court having jurisdiction in appeals from such a court; or
  2. he holds one of the specified qualifications and has held one or other of those qualifications for a total period of not less than seven years.
2. In this subsection “the specified qualifications” means the professional qualifications specified by the Legal Practitioners Act 1983, or by or under any law amending or replacing that Act, one of which must be held by any person before he may apply under that Act, or under any such law to be admitted as a legal practitioner in Lesotho.
If the office of President is vacant or the President is for any reason unable to exercise the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding that office has resumed those functions, as the case may be, they shall be exercised by such one of the judges of the Court of Appeal or such other person qualified to be appointed as a judge of the Court of Appeal as the King, acting in accordance with the advice of the Prime Minister, may appoint. Before tendering advice to the King for the purposes of this subsection, the Prime Minister shall consult the President if he is available:Provided that:
1. a person may be appointed under this subsection notwithstanding that he has attained the age prescribed for the purposes of section 125(1) of this Constitution; and
2. a person appointed under this subsection may, notwithstanding the assumption or resumption of the functions of the office of President by the holder of that office, continue to act as President for so long thereafter and to such extent as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him previously thereto.
If the office of a Justice of Appeal is vacant or if any such Justice of Appeal is appointed to act as President or is for any reason unable to perform the functions of his office, or if the President advises the King that the state of business in the Court of Appeal so requires, the King, acting in accordance with the advice of the Judicial Service Commission after consultation with the President, may appoint a person who is qualified to be appointed as a Justice of Appeal to act as a Justice of Appeal:Provided that a person may act as a Justice of Appeal notwithstanding that he has attained the age prescribed for the purposes of section 125(1) of this Constitution.
Any person appointed under subsection (5) to act as a Justice of Appeal shall, subject to the provisions of section 125(7) of this Constitution, continue to act for the period of his appointment or, if no such period is specified, until his appointment is revoked by the King, acting in accordance with the advice of the Judicial Service Commission after consultation with the President:Provided that, notwithstanding the expiration of the period of his appointment or the revocation of his appointment, he may thereafter continue to act as a Justice of Appeal for so long as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him previously thereto.

125. Tenure of office of appointed judges of Court of Appeal

Subject to the provisions of this section, a person holding the office of an appointed judge of the Court of Appeal shall vacate that office when he attains the prescribed age.
Notwithstanding that he has attained the age prescribed for the purposes of subsection (1), an appointed judge may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him before he attained that age.
An appointed judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
An appointed judge shall be removed from office by the King if the question of his removal has been referred by the King to a tribunal appointed under subsection (5) and the tribunal has advised the King that the appointed judge ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Prime Minister or, in the case of a Justice of Appeal, the President represents to the King that the question of removing an appointed judge under this section ought to be investigated, then–
1. the King shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected in accordance with the provisions of subsection (6) from among persons who hold or have held high judicial office;
2. the tribunal shall enquire into the matter and report on the facts thereof to the King and advise the King whether the appointed judge ought to be removed from office under this section for inability as aforesaid or for misbehaviour.
When the question of removing the President is to be investigated, the members of the tribunal shall be selected by the Prime Minister and, when the question of removing a Justice of Appeal is to be investigated, the members of the tribunal shall be selected by the President.
If the question of removing an appointed judge from office has been referred to a tribunal under subsection (5), the King, acting in accordance with the advice of the Prime Minister in the case of the President and in accordance with the advice of the President in the case of Justice of Appeal, may suspend the appointed judge from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal advises the King that the appointed judge should not be removed from office.
The prescribed age for the purposes of subsection (1) is the age of seventy-five years or such other age as may be prescribed by Parliament:Provided that–
1. a person may be appointed as Justice of Appeal for a fixed period of three years notwithstanding that he has attained the age referred to in this subsection or that he will before the expiry of his appointment have attained that age; and
2. an Act of Parliament, to the extent to which it alters the prescribed age after the appointment of a person to be a Justice of Appeal, shall not have effect in relation to that person unless he consents that it should have effect.
In this section and section 126 the expression “appointed judge of the Court of Appeal” and the expression “appointed judge” mean a person appointed under section 124(1) or, as the case may be, section 124(2) of this Constitution.

126. Oath by judges of Court of Appeal

Before entering upon the duties of his office, an appointed judge of the Court of Appeal shall take and subscribe such oath for the due execution of his office as may be prescribed by Parliament.

Part 4. Subordinate Courts, Courts-Martial and Tribunals

127. Establishment of other courts and Tribunals

Parliament may establish courts subordinate to the High Court, courts-martial and tribunals, and any such court or tribunal shall, subject to the provisions of this Constitution, have such jurisdiction and powers as may be conferred on it by or under any law.

128. Reference to High Court in cases in subordinate courts etc. involving interpretation of Constitution

Where any question as to the interpretation of this Constitution arises in any proceedings in any subordinate court or tribunal and the court or tribunal is of the opinion that the question involves a substantial question of law, the court or tribunal may, and shall, if any party to the proceedings so requests, refer the question to the High Court.
Where any question is referred to the High Court in pursuance of this section, the High Court shall give its decision upon the question and the court or tribunal in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal under section 129 of this Constitution, in accordance with the decision of the Court of Appeal.

Part 5. Appeals and Rules

129. Appeals to the Court of Appeal

In addition to the right of appeal accorded by section 47 of this Constitution, an appeal shall lie as of right to the Court of Appeal from decisions of the High Court in the following cases, that is to say:
1. subject to section 69 of this Constitution, final decisions in any civil or criminal proceedings on questions as to the interpretation of this Constitution, including any such decision made on a reference to the High Court under section 128;
2. final decisions of the High Court in the determination of any question in respect of which a right of access to the High Court is guaranteed by section 17 of this Constitution and final decisions of the High Court under section 22 of this Constitution.
Subject to section 69 of this Constitution, the Court of Appeal shall have such other jurisdiction with regard to appeals as shall be determined by Parliament.
The Court of Appeal shall, when determining any matter other than an interlocutory matter, be composed of an uneven number of judges, not being less than three.

130. Appeals to the High Court

In addition to the supervisory jurisdiction and jurisdiction on a reference conferred on the High Court by this Constitution, the High Court shall have such jurisdiction with regard to appeals from decisions of any subordinate court, court-martial or tribunal as may be conferred by Parliament.

131. Rules of Court

Without prejudice to any other provision of this Constitution for the making of rules regulating the practice and procedure of any court–

the Chief Justice may make rules for regulating the practice and procedure of the High Court; and
the President may make rules for regulating the practice and procedure of the Court of Appeal in relation to appeals to the Court (including the practice and procedure of any court from which such appeals are brought) whether before or after final judgement in the Court of Appeal:

Provided that no rule which may involve an increase in the expenses of a court shall be made except with the concurrence of the Minister for the time being responsible for finance, but the validity of a rule shall not in any proceedings in any court be called in question either by the court or by any party to the proceedings on the ground only that it was a rule in which the concurrence of the Minister was necessary and that he did not concur or is not expressed to have concurred in the making thereof.

Part 6. Judicial Service Commission

132. Judicial Service Commission

There shall be a Judicial Service Commission which shall consist of–
1. the Chief Justice, as Chairman;
2. the Attorney-General;
3. the Chairman of the Public Service Commission or some other member of that Commission designated by the Chairman thereof; and
4. a member appointed from amongst persons who hold or have held high judicial office who shall be appointed by the King acting in accordance with the advice of the Chief Justice and is hereinafter referred to as the appointed member.
Subject to the provisions of this section, the office of the appointed member of the Commission shall become vacant at the expiration of five years from the date of his appointment.
The appointed member of the Commission may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
The appointed member of the Commission shall be removed from office by the King if the question of his removal from office has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the King that he ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Chairman of the Commission represents to the King that the question of removing the appointed member of the Commission under this section ought to be investigated, then–
1. the King shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected by the Chairman of the Commission from among persons who hold or have held high judicial office; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the King and recommend to him whether the appointed member ought to be removed under this section.
If the question of removing the appointed member of the Commission has been referred to a tribunal under this section, the King, acting in accordance with the advice of the Chairman of the Commission, may suspend that member from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid and shall in any case cease to have effect if the tribunal recommends to the King that member should not be removed.
If the office of the appointed member of the Commission is vacant or if the person holding that office is for any reason unable to exercise the functions of his office, the King, acting in accordance with the advice of the Chief Justice, may appoint a person who is qualified to be the appointed member to act as that member, and any person so appointed shall, subject to the provisions of subsection (2), continue to act until the office in which he is acting is filled or, as the case may be, until the holder thereof resumes his functions or until his appointment to act is revoked by the King acting in accordance with the advice of the Chief Justice.
In the exercise of its functions under this Constitution, the Commission shall not be subject to the direction or control of any other person or authority.
The Commission may by regulation or otherwise regulate its own procedure and, with the consent of the Prime Minister, may confer powers or impose duties on any public officer or on any authority of the Government of Lesotho for the purpose of the discharge of its functions.
The Commission may, subject to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of any member, and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings:Provided that any decision of the Commission shall require the concurrence of a majority of all the members thereof.
The Secretary to the Commission shall be the Registrar of the High Court.

133. Appointment, etc. of judicial officers

The power to appoint persons to hold or act in any offices to which this section applies (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Judicial Service Commission.
The Judicial Service Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under subsection (1) to any one or more of its members or to any judge of the High Court or to any person holding or acting in an office to which this section applies.
The offices to which this section applies are–
1. the office of Registrar or Assistant Registrar of the High Court or Registrar or Assistant Registrar of the Court of Appeal;
2. the office of magistrate;
3. the office of member of any subordinate court; or
4. such other offices connected with any court as may be prescribed by or under an Act of Parliament.
Save in so far as Parliament otherwise provides, references in this section to a member of any court shall not be construed as including references to an assessor whose functions are advisory or consultative only.
In this section references to a court do not include references to a court-martial or tribunal.