Introduction
The right to life is often considered the most essential of all human rights, as without it, no other rights can be enjoyed. This essay will discuss the right to life within the legal framework of Lesotho. The discussion will focus on the provisions of the Constitution of Lesotho and will consider the influential principles on the nature of this right that were established in the South African case of S v Makwanyane and Another (1995). It will be shown that while the Lesotho Constitution protects the right to life, this protection is qualified, particularly in relation to the death penalty, creating a tension with the principles of human dignity and the absolute value of life articulated in Makwanyane.
The Right to Life under the Lesotho Constitution
The primary source for the protection of human rights in Lesotho is the Constitution of 1993. The right to life is specifically provided for in Section 25(1), which states, "Every person shall have the right to life. No one shall be arbitrarily deprived of his life." This provision establishes life as a fundamental right. However, this right is not absolute. Section 25(2) outlines specific circumstances under which the deprivation of life will not be considered a violation of Section 25(1).
The most significant of these exceptions is found in Section 25(2)(a), which permits the taking of a life "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 legitimises the imposition of the death penalty by the courts. Therefore, the constitutional framework of Lesotho protects the right to life but simultaneously carves out a clear exception for capital punishment for convicted criminals. This demonstrates that the right is qualified and subject to limitation by law, which stands in contrast to the approach taken in neighbouring jurisdictions like South Africa.
The Principles from S v Makwanyane
In 1995, the newly formed Constitutional Court of South Africa delivered its landmark judgment in S v Makwanyane, which declared the death penalty unconstitutional. While this case is not binding on the courts of Lesotho, its reasoning is highly persuasive in the region due to shared legal principles and similar constitutional values. The court in Makwanyane established several key principles regarding the right to life.
President Chaskalson, writing for the court, stated that the rights to life and dignity are the most important of all human rights and the source of all other personal rights (S v Makwanyane, 1995). The judgment interpreted the right to life as being closely connected to the right to human dignity. It was held that the death penalty was not just a violation of the right to life, but also constituted "cruel, inhuman or degrading treatment or punishment." The court considered and dismissed the argument that capital punishment was a unique deterrent to violent crime, finding the evidence for this claim to be unconvincing. Furthermore, the judgment was influenced by the African concept of ubuntu, which emphasises respect for human dignity and the interconnectedness of humanity. The finality and potential for error in applying the death penalty were also significant factors, as the execution of an innocent person is an irreversible injustice.
Discussion: A Tale of Two Approaches
When the Lesotho Constitution is read in light of the principles from Makwanyane, a clear jurisprudential conflict emerges. On one hand, Lesotho's Constitution explicitly permits the death penalty. On the other, the Makwanyane judgment presents a powerful argument that the death penalty is fundamentally incompatible with the rights to life and human dignity, which are also protected in Lesotho’s Constitution (in Sections 25 and 27 respectively).
The reasoning in Makwanyane suggests that the right to life is the ultimate right and should not be qualified in a way that allows the state to extinguish it as a form of punishment. The South African court viewed capital punishment as an objectively cruel and inhuman act that negates the essential worth of an individual. If Lesotho's courts were to adopt this reasoning, they would face a direct conflict with the clear text of Section 25(2)(a) of their own Constitution. This provision acts as a barrier to the judicial abolition of the death penalty in the same way it was abolished in South Africa. For Lesotho to follow the path of South Africa, it would likely require a constitutional amendment to remove this exception, or a very purposive judicial interpretation that prioritises the right to dignity over the specific death penalty clause.
Conclusion
In conclusion, the right to life in Lesotho is a constitutionally protected but qualified right. Section 25 of the Constitution establishes the right but also expressly permits the death penalty, meaning the right is not absolute. The principles laid down in S v Makwanyane offer a contrasting perspective, framing the right to life as the foundational right which, together with the right to dignity, renders capital punishment unconstitutional. This creates a significant tension between Lesotho’s current legal position and the progressive human rights jurisprudence of its most influential neighbour. The continued existence of the death penalty in Lesotho law shows a departure from the regional and international trend towards abolition, a trend that is powerfully articulated in the reasoning of the Makwanyane case.
References
- Constitution of Lesotho, 1993.
- S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
