Lesotho - Law

Law

Lesotho does not have a single code containing its laws; it draws them from a variety of sources including: Constitution, Legislation, Common Law, Judicial precedent, Customary Law, and Authoritative texts.

The Constitution of Lesotho came into force after the publication of the Commencement Order. Constitutionally, legislation refers to laws that have been passed by both houses of parliament and have been assented to by the King (section 78(1)). Subordinate legislation refers to laws passed by other bodies to which parliament has by virtue of section 70(2) of the Constitution validly delegated such legislative powers. These include government gazettes, ministerial orders, ministerial regulations and municipal bye-laws.

Although Lesotho shares with South Africa, Botswana, Swaziland, Namibia and Zimbabwe a mixed general legal system which resulted from the interaction between the Roman-Dutch Civilian law and the English Common Law, its general law operates independently. Lesotho also applies the common law, which refers to unwritten law or law from non-statutory sources, but excludes customary law. Decisions from South African courts are only persuasive, and courts refer to them in formulating their decisions. Decisions from similar jurisdictions can also be cited for their persuasive value. Magistrates’ courts decisions do not become precedent since these are lower courts. They are however bound by decisions of the High Court and the Court of Appeal. At the apex of the Lesotho justice system is the Court of Appeal, which is the final appellate forum on all matters. It has a supervisory and review jurisdiction over all the courts of Lesotho.

Lesotho has a dual legal system consisting of customary and general laws operating side by side. Customary law is made up of the customs of the Basotho, written and codified in the Laws of Lerotholi whereas general law consists of Roman Dutch Law imported from the Cape and the Lesotho statutes. The codification of customary law came about after a council was appointed in 1903 to advise the British Resident Commissioner on what was best for the Basotho in terms of laws that would govern them. Until this time, the Basotho customs and laws were passed down from generation to generation through oral tradition. The council was then given the task of codifying them, came up with the Laws of Lerotholi which are applied by customary courts today (local courts). Written works of eminent authors have persuasive value in the courts of Lesotho. These include writings of the old authorities as well as contemporary writers from similar jurisdictions.