Introduction
The right to life is often described as the most fundamental of all human rights, as without it, all other rights are meaningless. This essay will discuss the right to life within the legal framework of Lesotho. It will begin by examining the protection afforded to this right under the Constitution of Lesotho 1993, paying particular attention to the limitations placed upon it. The discussion will then consider the influential principles established in the South African case of S v Makwanyane, which declared the death penalty unconstitutional in that jurisdiction. Finally, the essay will analyse the extent to which these principles have impacted, or could impact, the interpretation of the right to life in Lesotho, considering the country's distinct constitutional provisions and judicial attitudes.
The Right to Life under the Lesotho Constitution
The primary source for the protection of human rights in Lesotho is the 1993 Constitution. The right to life is enshrined in Chapter II, which sets out the fundamental human rights and freedoms. Section 4(1)(a) of the Constitution states that every person is entitled to "the right to life". However, this right is not absolute and is immediately qualified by other provisions within the Constitution.
The most significant limitation is found in Section 5(1), which addresses the right to life specifically. It provides that "No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Lesotho of which he has been convicted". This clause expressly permits the state to carry out the death penalty, provided it is a sentence handed down by a competent court following a conviction for a criminal offence. This makes the constitutional position in Lesotho clear: the right to life can be lawfully extinguished by the state in certain circumstances.
Furthermore, Section 5(2) outlines other situations where a death will not be considered a violation of the right to life. These include death resulting from the use of reasonably justifiable force in defence of any person from violence, in defence of property, to effect a lawful arrest, or to suppress a riot or insurrection. These provisions demonstrate that the right to life in Lesotho, while fundamental, is subject to several express legal exceptions.
The Principles in S v Makwanyane
In contrast to the position in Lesotho, the Constitutional Court of South Africa took a different path in the landmark case of S v Makwanyane and Another (1995). The court was tasked with determining whether the death penalty was consistent with the rights protected in South Africa’s Interim Constitution of 1993. The court unanimously held that capital punishment was unconstitutional.
President Chaskalson, delivering the lead judgment, found that the death penalty was an infringement of the rights to life and dignity, and constituted cruel, inhuman, and degrading treatment or punishment. The court’s reasoning was based on several key principles. It rejected a purely retributive approach to justice, emphasising instead the values of a new society based on human dignity, equality, and freedom. The court highlighted the arbitrary nature of the death penalty, where chance could play a significant role in determining who lived and who died. It also stressed the finality of the punishment, noting that an error of justice could never be corrected once an execution had taken place. The judgment drew heavily on the concept of 'ubuntu', a philosophy emphasising common humanity and the value of all lives.
The Limited Impact of Makwanyane on Lesotho
While S v Makwanyane is a highly persuasive authority in many jurisdictions, its direct impact on the legal position in Lesotho has been limited by the text of the Lesotho Constitution. The principles of human dignity, the avoidance of cruelty, and the fallibility of the justice system articulated in Makwanyane provide powerful arguments against the death penalty. However, Lesotho's courts have consistently found that they are bound by the clear and unambiguous language of Section 5(1) of their own Constitution.
This was demonstrated in cases such as Letuka v The Director of Public Prosecutions (2008), where the Court of Appeal of Lesotho considered arguments against the death penalty that were based on the reasoning in Makwanyane. The court acknowledged the force of the South African judgment but ultimately concluded that the constitutional frameworks of the two countries were different. Unlike the South African Interim Constitution, which contained no express provision permitting the death penalty, the Lesotho Constitution explicitly sanctions it. Therefore, the court held that it did not have the power to declare the death penalty unconstitutional, as this would involve ignoring a clear constitutional provision. For the judiciary in Lesotho to follow the outcome of Makwanyane would be to overstep its role and usurp the function of the legislature in amending the Constitution.
Conclusion
In conclusion, the right to life in Lesotho is a constitutionally protected but qualified right. The Constitution of Lesotho 1993, in Section 5(1), expressly permits the imposition of the death penalty as an exception to the right to life. This stands in clear contrast to the position in South Africa, where the Constitutional Court in S v Makwanyane abolished capital punishment on the grounds that it was cruel, inhuman, and degrading. While the principles of dignity and fallibility from Makwanyane are respected and offer a compelling moral and philosophical critique of capital punishment, they have not been sufficient to override the explicit text of the Lesotho Constitution. As a result, the Lesotho courts have maintained that the abolition of the death penalty is a matter for constitutional or legislative reform, not judicial invalidation.
References
Letuka v The Director of Public Prosecutions [2008] LSCA 1.
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.
The Constitution of Lesotho 1993.
