Lesotho 1993 Constitution (reviewed 2018) - Page 14 of 19

Table of Contents

CHAPTER XIII. THE PUBLIC SERVICE

136. Public Service Commission

There shall be a Public Service Commission which shall consist of a Chairman and not less than two nor more than four other members, who shall be appointed by the King, acting in accordance with the advice of the Judicial Service Commission.
A person shall not be qualified to be appointed a member of the Commission if he is a public officer and the Judicial Service Commission shall not advise the King to appoint any person as a member unless it is satisfied that such person–
1. is a person of integrity;
2. possesses experience in administrative and public affairs and such other qualities of mind as to enable him to discharge his duties in a fair manner free from bias or prejudice;
3. does not take an active part in politics or in political activity.
A member of the Commission shall not, within the period of three years commencing with the day on which he last held or acted in the office of member of the Commission, be eligible for appointment to or to act in any public office.
Subject to the provisions of this section, the office of a member of the Commission shall become vacant–
1. at the expiration of five years from the date of his appointment; or
2. if he becomes a public officer; or
3. if he becomes a member of either House of Parliament or a local authority or a candidate for election to Parliament or a local authority, or an officer of a political party.
A member of the Commission may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour (including failure to discharge his duties in a fair manner free from prejudice) and shall not be removed except in accordance with this section.
A member of the Commission shall be removed from office by the King if the question of his removal from office has been referred to a tribunal appointed under subsection (7) and the tribunal has recommended to the King that he ought to be removed from office for inability or for misbehaviour.
If the Prime Minister in the case of the Chairman of the Commission or the Chairman in the case of any other member represents to the King that the question of removing a member of the Commission under this section ought to be investigated, then–
1. the King shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected by the Chief Justice from among persons who hold or have held high judicial office; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the King and recommend to him whether the member ought to be removed under this section.
If the question of removing a member of the Commission has been referred to a tribunal under this section, the King, acting in accordance with the advice of the Chief Justice, may suspend that member from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the King that that member should not be removed.
If the office of Chairman of the Commission is vacant or if the person holding that office is for any reason unable to exercise the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding that office has resumed those functions, as the case may be, they shall be exercised by such one of the other members of the Commission as may for the time being be designated in that behalf by the King, acting in accordance with the advice of the Judicial Service Commission.
If at any time there are less than two members of the Commission besides the Chairman or if any such member is appointed to act as Chairman or is for any reason unable to exercise the functions of his office, the King, acting in accordance with the advice of the Judicial Service Commission, may appoint a person who is qualified to be appointed as a member of the Commission to act as a member, and any person so appointed shall, subject to the provisions of subsection (4), continue to act until the office in which he is acting has been filled or, as the case may be, until the holder thereof has resumed his functions or until his appointment to act has been revoked by the King, acting in accordance with the advice of the Judicial Service Commission.
The Commission shall, in the exercise of its functions under this Constitution, not be subject to the direction or control of any other person or authority.
The Commission may by regulation or otherwise regulate its own procedure and, with the consent of the Prime Minister, may confer powers or impose duties on any public officer or on any authority of the Government of Lesotho for the purpose of the discharge of its functions.
The Commission may, subject to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings:Provided that any decision of the Commission shall require the concurrence of a majority of its members.

137. Appointment, etc. of public officers

Subject to the provisions of this Constitution, the power to appoint persons to hold or act in offices in the public service (including the power to confirm appointments), and the power to terminate appointments of such persons, save the power to disipline and terminate the appointment of suh persons for disciplinary reasons, is vested in the Public Service Commission.
Subject to the provisions of this Chapter, the Public Service Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under subsection (1) to any one or more members of the Commission or, with the consent of the Prime Minister, to any public officer.
The provisions of this section shall not apply in relation to the following offices, that is to say–
1. the office of a judge of the Court of Appeal or of the High Court, the office of the Attorney-General, the office of Auditor-General and the office of Ombudsman;
2. [deleted by Act No. 7 of 1997]
3. except in relation to appointments thereto or to act therein, the office of Director of Public Prosecutions;
4. so far only as concerns appointments thereto or to act therein, the office of Principal Secretary, and the office of Government Secretary;
5. any office to which section 133 of this Constitution (which relates to offices within the jurisdiction of the Judicial Service Commission) applies;
6. any office the power to make appointments to which is vested in a Teaching Service Commission established in accordance with section 144 of this Constitution;
7. the office of Ambassador, High Commissioner or other principal representative of Lesotho in any other country; and
8. the office of Commander of the Defence Force and offices of members of the Defence Force, the office of Commissioner of Police and offices of members of the Police Force, the office of the Director of the National Security Service and offices of members of the National Security Service, and the office of Director of Prisons and offices of members of the Prison Service.
No person shall be appointed under this section to or to act in any office on the King’s personal staff except with the concurrence of the King.
Before any of the powers conferred by this section in relation to the Clerk of a House of Parliament or a member of his staff are exercised by the Public Service Commission or any other person or authority, the Commission or that person or authority shall consult with the President or Speaker of that House.
Before the Public Service Commission or any other person or authority exercises its powers under this section to appoint to or to act in any public office any person who holds or is acting in any office the power to make appointments to which is vested by or under this Constitution in the Judicial Service Commission or the Teaching Service Commission, the Public Service Commission or that person or authority shall consult with the Judicial Service Commission or the Teaching Service Commission, as the case may be.
A public officer shall not be removed from office or subjected to any other punishment under this section on the grounds of any act done or omitted by him in the exercise of a judicial function conferred on him unless the Judicial Service Commission concurs therein.

[repealed by Act No. 7 of 1997]

139. Principal Secretaries and Government Secretary

The power to appoint a person to hold or act in any office to which this section applies shall vest in the Prime Minister, acting after consultation with the Public Service Commission:Provided that the power to appoint a person to hold or act in any such office upon transfer from another such office carrying the same emoluments shall vest in the Prime Minister.
The offices to which this section applies are the office of any Principal Secretary and the office of the Government Secretary.

140. Attorney-General

1. The power to appoint a person to hold or act in the office of Attorney-General shall vest in the King, acting in accordance with the advice of the Prime Minister.

2

1. A person shall not be qualified to be appointed to hold or act in the office of Attorney-General unless he holds one of the specified qualifications and has held one or other of those qualifications for a total period of not less than five years.
2. In this subsection “the specified qualifications” means the professional qualifications specified by the Legal Practitioners Act 1983 or by or under any law amending or replacing that Act, one of which must be held by any person before he may apply under that Act, or under any such law, to be admitted as a legal practitioner in Lesotho.
If the office of Attorney-General is vacant or if the Attorney-General is for any reason unable to exercise the functions of his office, a person qualified for appointment to that office may be appointed to act therein, and any person so appointed shall, subject to the provisions of subsections (4), (6) and (8), continue to act until a person has been appointed to the office of Attorney-General and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has resumed those functions.
Subject to the provisions of subsection (6), the Attorney-General shall vacate his office when he attains the prescribed age.
A person holding the office of Attorney-General may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
The Attorney-General shall be removed from office by the King if the question of his removal from office has been referred to a tribunal appointed under subsection (7) and the tribunal has recommended to the King that he ought to be removed for inability as aforesaid or for misbehaviour.
If the Prime Minister represents to the King that the question of removing the Attorney-General under this section ought to be investigated, then–
1. the King shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected by the Chief Justice from among persons who hold or have held high judicial office; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the King and recommend to him whether the Attorney-General ought to be removed under this section.
If the question of removing the Attorney-General has been referred to a tribunal under this section, the King, acting in accordance with the advice of the Prime Minister, may suspend the Attorney-General from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the King that the Attorney-General should not be removed.
The prescribed age for the purposes of subsection (4) is the age of fifty-five years or such other age as may be prescribed by Parliament:Provided that an Act of Parliament, to the extent to which it alters the prescribed age after the appointment of a person to be or to act as Attorney-General, shall not have effect in relation to that person unless he consents that it should have effect.

141. Director of Public Prosecutions

1

A person shall not be qualified to be appointed to hold the office of Director of Public Prosecutions unless he holds one of the specified qualifications and has held one or other of those qualifications for a total period of not less than five years.
In this subsection “the specified qualifications” means the professional qualifications specified by the Legal Practitioners Act 1983, or by or under any law amending or replacing that Act, one of which must be held by any person before he may apply under that Act, or under any such law, to be admitted as a legal practitioner in Lesotho.

If the office of Director of Public Prosecutions is vacant or if the Director of Public Prosecutions is for any reason unable to exercise the functions of his office, a person qualified for appointment to that office may be appointed to act therein, and any person so appointed shall, subject to the provisions of subsections (3), (5) and (7), continue to act until a person has been appointed to the office of Director of Public Prosecutions and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has resumed those functions.
Subject to the provisions of subsection (5), the Director of Public Prosecutions shall vacate his office when he attains the prescribed age.
A person holding the office of Director of Public Prosecutions may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
The Director of Public Prosecutions shall be removed from office by the King if the question of his removal from office has been referred to a tribunal appointed under subsection (6) and the tribunal has recommended to the King that he ought to be removed for inability as aforesaid or for misbehaviour.
If the Prime Minister or the Chairman of the Public Service Commission represents to the King that the question of removing the Director of Public Prosecutions under this section ought to be investigated, then–
1. the King shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected by the Chief Justice from among persons who hold or have held high judicial office; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the King and recommend to him whether the Director of Public Prosecutions ought to be removed under this section.
If the question of removing the Director of Public Prosecutions has been referred to a tribunal under this section, the King, acting in accordance with the advice of the Public Service Commission, may suspend the Director of Public Prosecutions from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the King that the Director of Public Prosecutions should not be removed.
The prescribed age for the purposes of subsection (3) is the age of fifty-five years or such other age as may be prescribed by Parliament:Provided that an Act of Parliament, to the extent to which it alters the prescribed age after the appointment of a person to be or to act as Director of Public Prosecutions, shall not have effect in relation to that person unless he consents that it should have effect.

142. Auditor-General

The power to appoint a person to hold or act in the office of Auditor-General shall vest in the King, acting in accordance with the advice of the Prime Minister.
If the office of Auditor-General is vacant or if the Auditor-General is for any reason unable to exercise the functions of his office, a person may be appointed to act as Auditor-General, and any person so appointed shall, subject to the provisions of subsections (3), (5) and (7), continue to act until a person has been appointed to the office of Auditor-General and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has resumed those functions.
Subject to the provisions of subsection (5), the Auditor-General shall vacate his office when he attains the prescribed age.
A person holding the office of Auditor-General may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
The Auditor-General shall be removed from office by the King if the question of his removal from office has been referred to a tribunal appointed under subsection (6) and the tribunal has recommended to the King that he ought to be removed for inability as aforesaid or for misbehaviour.
If the Prime Minister represents to the King that the question of removing the Auditor-General under this section ought to be investigated, then–
1. the King shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected by the Chief Justice from among persons who hold or have held high judicial office; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the King and recommend to him whether the Auditor-General ought to be removed under this section.
If the question of removing the Auditor-General has been referred to a tribunal under this section, the King, acting in accordance with the advice of the Prime Minister, may suspend the Auditor-General from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the King that the Auditor-General should not be removed.
The prescribed age for the purposes of subsection (3) is the age of fifty-five years or such other age as may be prescribed by Parliament:Provided that an Act of Parliament to the extent to which it alters the prescribed age after the appointment of a person to be or to act as Auditor-General, shall not have effect in relation to that person unless he consents that it should have effect.

143. Principal representatives of Lesotho abroad

The power to appoint persons to hold or act in offices to which this section applies and to remove from office persons holding or acting in such offices shall vest in the King, acting in accordance with the advice of the Prime Minister.
Before tendering advice for the purposes of this section in relation to any person who holds any office in the public service, other than an office to which this section applies, the Prime Minister shall consult the Public Service Commission.
The offices to which this section applies are the offices of Ambassador, High Commissioner or other principal representative of Lesotho in any other country.

144. Teaching Service

There shall be a Teaching Service, the functions of which shall be as prescribed by an Act of Parliament.
There shall be a Teaching Service Commission, the composition, powers, duties and procedure of which shall be as prescribed by an Act of Parliament.

145. Defence Force

There shall be a Defence Force for the defence of Lesotho.
The Prime Minister shall have power to determine the operational use of the Defence Force.
Subject to the provisions of subsection (2) and any Act of Parliament, the command of the Defence Force shall be vested in the Commander of the Defence Force.
The power to appoint a person to hold or act in the office of the Commander of the Defence Force and the power to remove him from that office shall vest in the King acting on the advice of the Prime Minister, as may be prescribed by an Act of Parliament.
The person holding the office of the Commander of the Defence Force on the da immediately preceding the date of coming into operation of this Act shall, as from that date, continue to hold such office, under the same terms and conditions, as if he had been appointed to do so in accordance with the provisions of this Act:Provided that any person who under any existing law would have been required to vacate his office at the expiration of any period shall vacate his office at the expiration of that period.
An Act of Parliament shall make provision for the organisation, administration and discipline of the Defence Force including the appointment of persons to offices or rank in the Defence Force, the removal from office or reduction in rank, their punishment for breaches of discipline and the fixing of their conditions of service.

146. Courts-Martial Appeal Court

There shall be a Courts-Martial Appeal Court which shall have such jurisdiction and powers as may be conferred on it by any other law.
The members of the Courts-Martial Appeal Court shall consist of-
1. the President who shall be a judge;
2. a judge; and
3. a retired army officer with legal experience.
The Courts-Martial Appeal Court shall be a superior court of record.
The power of appointing persons to the Court-Martial Appeal Court shall vest in the Prime Minister acting in consultation with the Chief Justice.

147. Police Service

There shall be a Police Service for Lesotho that shall be responsible for the maintenance of law and order in Lesotho.
The command of the Police Service shall be vested in the Commissioner of Police and subject to any direction of the Minister, the Commissioner shall be responsible for the administration and discipline of the Police Service.
The power to appoint a person to hold or act in the office of the Commissioner of Police and the power to remove him from that office shall vest in the King, acting on the advice of the Prime Minister, as may be prescribed by an Act of Parliament.
The person holding the office of the Commissioner of Police on the day immediately preceding the date of coming into operation of this Act shall, as from that date, continue to hold such office, under the same terms and conditions, as if he had been appointed to do so in accordance with the provisions of this Act:Provided that any person who under any existing law would have been required to vacate his office at the expiration of any period shall vacate his office at the expiration of that period.
An Act of Parliament shall make provision for the organisation, administration and discipline of the Police Service including the appointment of persons to offices or ranks i the Police Service, the removal from office or reduction in rank, their punishment for breaches of discipline and the fixing of their conditions of service.

148. National Security Service

There shall be a National Security Service that shall be responsible for the protection of national security.
The Command of the National Security Service shall be vested in the Director-General of the National Security Service who shall be responsible for the administration and discipline of the National Security Service.
The power to appoint a person to hold or act in the office of Director-General of the National Security Service and the power to remove him from that office shall vest in the Prime Minister.

149. Lesotho Correctional Service

There shall be a Lesotho Correctional Service that shall be responsible for the administration of prisons in Lesotho.
The superintendence of the Lesotho Correctional Service shall be vested in the Commissioner of Correctional Service and, subject to any direction of the Minister, the Commissioner of Correctional Service shall be responsible for the administration and discipline of the Lesotho Correctional Service.
The power to appoint a person to hold or act in the office of the Commissioner of Correctional Service and the power to remove him from that office shall vest in the Prime Minister, as may be prescribed by an Act of Parliament.
The person holding the office of the Commissioner of Correctional Service on the day immediately preceding the date of coming into operation of this Act shall, as from that date, continue to hold such office, under the same terms and conditions, as if he had been appointed to do so in accordance with the provisions of this Act.Provided that any person who under any existing law would have been required to vacate his office at the expiration of any period shall vacate his office at the expiration of that period.
An Act of Parliament shall make provision for the organisation, administration and discipline of the Lesotho Correctional Service including the appointment of persons to offices or rank in the Lesotho Correctional Service, the removal from office or reduction in rank, their punishment for breaches of discipline and the fixing of their conditions of service.

150. Pensions laws and protection of pension rights

The law to be applied with respect to any pensions benefits that were granted to any person before the coming into operation of this Constitution shall be the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to that person.
The law to be applied with respect to any pensions benefits (not being benefits to which subsection (1) applies) shall–
1. in so far as those benefits are wholly in respect of a period of service as a public officer that commenced before the date on which this Constitution came into operation, be the law that was in force immediately before that date; and
2. in so far as those benefits are wholly or partly in respect of a period of service as a public officer that commenced after the date on which this Constitution came into operation, be the law in force on the date on which that period of service commenced,
or be any law in force at a later date that is not less favourable to that person.
Where a person is entitled to exercise an option as to which of two or more laws shall apply in his case, the law for which he opts shall, for the purposes of this section, be deemed to be more favourable to him than the other law or laws.
All pensions benefits shall be a charge on the Consolidated Fund.
In this section “pensions benefits” means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers or for the widows, children, dependants or personal representatives of such persons in respect of such service.
References in this section to the law with respect to pensions benefits include (without prejudice to their generality) references to the law regulating the circumstances in which any such benefits that have been granted may be withheld, reduced in amount or suspended and the law regulating the amount of any such benefits.

151. Power to withhold pensions, etc

Where under any law any person or authority has a discretion–
1. to decide whether or not any pensions benefits shall be granted; or
2. to withhold, reduce in amount or suspend any such benefits that have been granted,
those benefits shall be granted and may not be withheld, reduced in amount or suspended unless the Public Service Commission concurs in the refusal to grant the benefits or, as the case may be, in the decision to withhold them, reduce them in amount or suspend them.
Where the amount of any pensions benefits that may be granted to any person is not fixed by law, the amount of the benefits to be granted to him shall be the greatest amount for which he is eligible unless the Public Service Commission concurs in his being granted benefits of a smaller amount.
The Public Service Commission shall not concur under subsection (1) or (2) in any action taken on the ground that any person who holds or has held the office of judge of the Court of Appeal, judge of the High Court, Attorney-General, Director of Public Prosecutions, Auditor-General or Ombudsman has been guilty of misbehaviour in that office unless he has been removed from that office by reason of such misbehaviour.
Before the Public Service Commission concurs under subsection (1) or (2) in any action taken on the ground that any person who holds or has held any office to which, at the time of such action, section 133 of this Constitution applies has been guilty of misbehaviour in that office, the Public Service Commission shall consult the Judicial Service Commission.
In this section “pensions benefits” means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers or for the widows, children, dependants or personal representatives of such persons in respect of such service.