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

Hoolo 'Nyane

doi:10.17159/1727-3781/2019/v22i0a5713

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.

Highlights

The Constitution of Lesotho, 1993 like the Constitution of the Republic of South Africa, 1996 cherishes the notion of constitutional supremacy.[1]
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
It differs from procedural review in that procedural review is a "form of judicial review in which courts: either a) determine the validity of statutes based on an examination of the procedure leading to their enactment; or b) oversee the adherence to procedural rules whilst the legislative process is going on."[32]

Summary

Introduction

The Constitution of Lesotho, 1993 like the Constitution of the Republic of South Africa, 1996 cherishes the notion of constitutional supremacy.[1]. One of the areas which remains faithful to the English concept of inter-branch relationship is the review of parliamentary work in general, and the legislative process in particular, by the courts of law.[4] The English law is almost settled, and it has been widely exported to the broader commonwealth family of constitutions,[5] that due to the time-honoured doctrine of parliamentary sovereignty, the work of parliament may not be vitiated by any authority; not even by a court of law This rule has been the subject of long and sometimes contradictory scholarly and judicial engagement.[6] the classical analysis of it remains that of the British scholar, Dicey.[7] In his formulation, the notion of parliamentary sovereignty involves three "traits". Study the judicial approaches to the review of the legislative process in each of the two countries under study

Demarcation of judicial review of legislative process

The origins and rationale for non-interventionism

Judicial review of the legislative process in Lesotho

Review of legislative process in South Africa

Conclusion

Literature