Re-visiting the powers of the King under the Constitution of Lesotho: Does he still have any discretion?

Abstract

SUMMARY The powers of the monarch have been a subject of protracted political and legal controversy since colonialism in Lesotho. When the country got independence from Britain in 1966, the long drawn-out gravitation towards British model of constitutional monarch was confirmed in the Independence Constitution. Nevertheless, the Independence Constitution had categories of powers for the monarch. There were powers reposed in the King exercisable “on the advice” and those that were exercisable in his own “deliberate discretion”. When the current Constitution was adopted in 1993, the discretionary powers of the King were effectively abolished; all his powers became exercisable “on the advice”. That the powers of the King under the current Constitution are only exercisable on advice has been a long-held view in judicial policy and in legal scholarship. It was not until 2017 when the Court of Appeal in the case of Phoofolo v The Right Honourable Prime Minister suggested that the King may have discretion on whether to accede to Prime Ministers “recommendation” to dissolve parliament or not. The decision of the Court of Appeal in Phoofolo has reinvigorated a fresh debate in constitutional scholarship about the real powers of the monarch under the Constitution. The purpose of this paper is to investigate the extent of the legal powers of the monarch under the Constitution - whether indeed the King still has any discretionary power.

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