Introduction
The Constitution of Lesotho 1993 establishes a framework for the judiciary, which is central to upholding the rule of law and constitutional supremacy. A key feature of this framework is the High Court, which serves a dual function as both a court of general jurisdiction and, in specific instances, as a Constitutional Court. This essay will differentiate between the High Court sitting as a regular court and as a Constitutional Court. It will then trace the appeal route for a challenge to the constitutionality of the statutory limits of subordinate courts, explaining which court holds the primary jurisdiction to interpret the Constitution and invalidate legislation.
The High Court: Regular vs. Constitutional Sittings
The High Court of Lesotho is established by Section 118 of the Constitution. Its ordinary function is detailed in Section 119(1), which grants it "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". In this capacity, a single judge typically presides over matters ranging from contract disputes and criminal trials to appeals from the Magistrate's Courts. This is the High Court in its regular form, dealing with the day-to-day administration of justice under various statutes and the common law.
However, the Constitution creates a distinct role for the court when constitutional matters arise. Section 128(1) of the Constitution states that “the High Court shall have jurisdiction to hear and determine any of the questions referred to in section 22 of this Constitution” and that when doing so, it “shall be styled the Constitutional Court”. This does not create a separate, standalone court but rather designates the High Court, sitting with a specific composition, to adjudicate constitutional issues. Typically, as provided for in the High Court Rules 1980, the Constitutional Court is constituted by three judges (Mofokeng, 2012). This specialised panel underscores the gravity of constitutional litigation. The case of Mofomobe and Another v Minister of Finance and Another [1999] LSHC 119 illustrates this process, where a constitutional question was referred to be heard by the High Court sitting as the Constitutional Court.
Jurisdiction for Constitutional Interpretation and Striking Down Legislation
The primary, original jurisdiction to interpret the Constitution and declare legislation unconstitutional is vested in the High Court sitting as the Constitutional Court. The foundation for this power is Section 2 of the Constitution, which declares the Constitution as the supreme law of Lesotho and provides that "if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void".
This principle of constitutional supremacy is given practical effect through Section 22(1), which allows any person who alleges that a provision of the Constitution has been, is being, or is likely to be contravened in relation to them to apply to the High Court for redress. Section 22(2) empowers the High Court to "make such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to 21". This power includes the ability to strike down legislation that is found to be inconsistent with the Constitution. For instance, in Sekoati and Others v President of the Court Martial and Others C of A (CIV) 18/1999, the Court of Appeal, exercising its appellate constitutional jurisdiction, declared certain sections of the Lesotho Defence Force Act 1996 to be unconstitutional. While this was a Court of Appeal decision, the matter originated from the High Court, demonstrating the High Court's primary role in initially hearing such challenges. Therefore, the High Court has primary, but not exclusive, jurisdiction, as its decisions are subject to appeal.
The Appeal Route for a Constitutional Challenge
To challenge the constitutionality of the statutory limits of the subordinate courts, a litigant must follow a specific judicial path. Subordinate courts, such as the Magistrate's Courts, do not possess the jurisdiction to determine the constitutionality of legislation. As established, this power is reserved for the High Court.
Therefore, the challenge must be initiated in the High Court, which would convene as the Constitutional Court to hear the matter. The applicant would argue that the statutory provisions imposing certain limits on subordinate courts are inconsistent with a provision of the Constitution. The Constitutional Court would then hear the arguments and deliver a judgment.
If either party is dissatisfied with the outcome, an appeal would lie directly to the Court of Appeal of Lesotho. Section 129(1) of the Constitution grants the Court of Appeal jurisdiction to hear appeals from all "judgments, orders or decisions of the High Court". This includes decisions made by the High Court when sitting as the Constitutional Court. The Court of Appeal is the final appellate court in Lesotho, and its decision on the constitutionality of the statutory limits would be binding on all other courts. This hierarchical structure ensures a definitive and final resolution of significant constitutional questions.
Conclusion
In summary, the High Court of Lesotho operates in two distinct capacities: as a court of unlimited general jurisdiction and as a specialised Constitutional Court for adjudicating constitutional questions. The primary original jurisdiction to interpret the Constitution and strike down inconsistent legislation rests with the High Court sitting as the Constitutional Court. However, this jurisdiction is not ultimate. Any party seeking to challenge the constitutionality of a law, such as the statutory limits of subordinate courts, must begin their case in the High Court. The final determination of the matter, should it be appealed, rests with the Court of Appeal, which serves as the ultimate guardian of Lesotho's constitutional order.
References
Mofokeng, L. E. (2012) ‘The legal effect of the pronouncements of the Constitutional Court in Lesotho’, Lesotho Law Journal, 21(1), pp. 119-136.
Case Law
Mofomobe and Another v Minister of Finance and Another [1999] LSHC 119.
Sekoati and Others v President of the Court Martial and Others C of A (CIV) 18/1999.
Legislation
Constitution of Lesotho 1993.
High Court Rules 1980 (as amended).
