Judicial Review of the Legislative Process in Lesotho: Lessons from South Africa

Abstract

The Constitution of Lesotho has a supremacy clause which ordinarily empowers the judiciary to review the actions of other branches of government. However, the judiciary in Lesotho seems to treat the legislative process with deference. This deference seems to be based on the old common law notion of the non-intervention of the judiciary in the legislative process. The notion has its roots in the British constitutional system. The Constitution of Lesotho, 1993 has even protected this doctrine through a constitutional ouster clause in section 80(5). The main question which this paper seeks to answer is whether indeed the common law notion of non-intervention in the legislative process is part of the constitutional law of Lesotho. In the end, the paper uses South African jurisprudence on the review of the legislative process to make a case that Lesotho can use the supremacy clause in the constitution and other constitutional doctrines such as the rule of law and legality to break with the common law notion of non-interventionism.