Con­sti­tu­tional Re­view ur­gent pri­or­ity

Lesotho Times - - Opinion & Analysis - Ut­loang Ka­jeno

DUR­ING the 1990’s, Jus­tice Michael Mathealira Ramod­i­beli chaired the Le­sotho Land (Ten­ure) Re­form Com­mis­sion. Its rec­om­men­da­tions gave birth to our cur­rent land ten­ure sys­tem, and are its bedrock.

The then gov­ern­ment es­tab­lished a Com­mis­sion be­cause it was mind­ful of the crit­i­cal eco­nomic and agrar­ian role that land plays in any so­ci­ety.

Those with ex­ten­sive knowl­edge of the Holy Scrip­ture might well re­fer to I Kings, Chap­ter 21. It chron­i­cles the story of Naboth, the Jezreel­ite and Ahab, the king of Sa­maria, and is pop­u­larly ti­tled, “Naboth’s Vine­yard”. To this day, as tes­ta­ment to the im­por­tance of land, the Is­raelites are still locked-in in­ternecine war with the Pales­tini­ans, be­cause the for­mer re­gard the Bi­b­li­cal “Promised Land” as theirs be­stowed by God, ac­cord­ing to the Holy Scrip­ture.

I am recit­ing this para­ble in or­der to un­der­score the im­pec­ca­ble im­por­tance of land in a sim­i­lar vein to con­sti­tu­tions through­out the world and in re­la­tions be­tween coun­tries, and na­tions, as well the sem­i­nal role th­ese two com­modi­ties or doc­u­ments play in in­trahu­man re­la­tion­ships.

On the ba­sis of this im­por­tance there­fore, I urge the new coali­tion gov­ern­ment and the op­po­si­tion par­ties to es­tab­lish a Con­sti­tu­tional Re­view Com­mis­sion, as a mat­ter of top pri­or­ity, in their of­fi­cial busi­ness.

It is there­fore grat­i­fy­ing that Deputy Prime Min­is­ter Mo­thetjoa Mets­ing and Leader of the House and Gov­ern­ment Busi­ness in the au­gust house, is re­ported in the me­dia to have said on Wed­nes­day, last week, that there is merit in the clam­our for a new Con­sti­tu­tion.

The DPM is very right. This na­tion needs a new Con­sti­tu­tion to re­peal or amend the 1993 doc­u­ment.

A con­sti­tu­tion is uni­ver­sally de­fined as the Supreme Law, com­pris­ing rules and prac­tices that de­ter­mine the com­po­si­tion and func­tions of the or­gans of cen­tral and lo­cal gov­ern­ment in a state and reg­u­late the re­la­tion­ship be­tween the in­di­vid­ual and the state. Most states, bar­ring the United King­dom (UK) (which has a largely un­writ­ten con­sti­tu­tion) and a few oth­ers, have writ­ten con­sti­tu­tions.

The Con­sti­tu­tion of the UK con­sists largely of statutes, the amend­ment of which by sub­se­quent statutes re­quires no spe­cial pro­ce­dure. It also, to a very sig­nif­i­cant ex­tent, con­sists of com­mon law rules and con­sti­tu­tional con­ven­tions.

For clar­ity, the com­mon law on the one hand, is that of English law based on rules de­vel­oped by the royal courts dur­ing the first three cen­turies as a sys­tem ap­pli­ca­ble to the whole coun­try as op­posed to lo­cal cus­toms.

It is the un­writ­ten law, that por­tion con­tracted by the Acts and reg­u­la­tions and is ap­plied to the whole coun­try as com­pared with lo­cal cus­toms which may be ob­served in cer­tain lo­cal­i­ties or com­mu­ni­ties.

Con­sti­tu­tional con­ven­tions on the other hand, are prac­tices re­lat­ing to the ex­er­cise of their func­tions by the Crown, the gov­ern­ment,

Par­lia­ment and the ju­di­ciary that are not legally en­force­able but are com­monly fol­lowed as if they were.

Granted, a com­mis­sion is a pro­hib­i­tively ex­pen­sive un­der­tak­ing by any gov­ern­ment, let alone Le­sotho with its small and frag­ile econ­omy, but it would go a long way in mak­ing rec­om­men­da­tions that, if in­cor­po­rated in our new, or amended Con­sti­tu­tion or re­pealed, would hope­fully set­tle in un­am­bigu- ous pro­vi­sions the many con­tro­ver­sies that have been the un­for­tu­nate hall­mark of our some­what frag­ile and nascent democ­racy since the adop­tion of the cur­rent 1993 Con­sti­tu­tion.

I have in the past ar­gued vo­cif­er­ously that our Con­sti­tu­tion mer­its, like any piece of leg­is­la­tion, im­por­tant though it is, amend­ments or to be re­pealed or whole­sale adop­tion of a new con­sti­tu­tion.

How­ever, whether this coun­try needs a com­pletely new Con­sti­tu­tion is a mat­ter to be de­cided by Con­sti­tu­tional ex­perts.

Legal schol­ars, lawyers and ju­di­cial of­fi­cers might ar­gue that the many con­sti­tu­tional cases we have that arise-out of dif­fer­ing con­sti­tu­tional in­ter­pre­ta­tions are good for the devel­op­ment of our ju­rispru­dence. How­ever, I beg to dif­fer.

Th­ese dif­fer­ent in­ter­pre­ta­tions have not only jeop­ar­dised our young democ­racy and sta­bil­ity as a na­tion but it has re­cently, though it is sad to ad­mit, led our coun­try to the brink of civil war.

I have of­ten ar­gued that a con­sti­tu­tion needs to be re-vis­ited ev­ery now and then and amended ac­cord­ingly or re­pealed. This is to meet the de­mands of the ever-chang­ing mod­ern world.

There will al­ways be new chal­lenges, tech­nolo­gies and sce­nar­ios that come-up ev­ery now and then. The world changes so fast that the fa­thers and crafters of our cur­rent Con­sti­tu­tion, de­spite their good in­ten­tions and their un­doubted abil­i­ties could not by then have fore­seen.

A case in point is the Con­sti­tu­tion of per­haps ar­guably the world’s old­est democ­racy to­gether with the United King­dom, the United States (US).

The Con­sti­tu­tion of the US is over 200 years old yet by 1992 it had no less than 27 amend­ments. How­ever, this does not de­tract from the fact that the US Con­sti­tu­tion, old as it is, was and is still one of the best and most com­pre­hen­sive in the world.

Nearer home, South Africa, has ar­guably the best and most un­am­bigu­ous Con­sti­tu­tion in the world. Yet still, con­sti­tu­tional lit­i­ga­tion in that young democ­racy of only over 20 years, is still in­sti­tuted in great num­bers.

There­fore, the ar­gu­ment for a largely un­a­mended or static and rigid con­sti­tu­tion does not au­gur well for our ju­rispru­dence is a non­starter.

Con­sti­tu­tions should never and are never cast in stone. They are prod­ucts of hu­man in­ge­nu­ity and limited fore­sight, which all hu­mans are sub­ject to, there­fore they are at times, depend­ing on cir­cum­stances, mer­its to be re­pealed amended dur­ing a na­tion’s evo­lu­tion as a democ­racy. The con­sti­tu­tion has to be re­viewed and be re­spon­sive. Le­sotho jus­ti­fi­ably prides it­self as hav­ing

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