Lesotho 1993 Constitution (reviewed 2018) - Page 8 of 19

Table of Contents

CHAPTER VIII. THE EXECUTIVE

86. Executive authority of Lesotho

The executive authority of Lesotho is vested in the King and, subject to the provisions of this Constitution, shall be exercised by him through officers or authorities of the Government of Lesotho.

87. Ministers of Government of Lesotho

There shall be a Prime Minister who shall be appointed by the King acting in accordance with the advice of the Council of State.
The King shall appoint as Prime Minister the member of the National Assembly who appears to the Council of State to be the leader of the political party or coalition of political parties that will command the support of a majority of the members of the National Assembly:Provided that if occasion arises for making an appointment to the office of Prime Minister while Parliament stands dissolved, a person who was a member of the National Assembly immediately before the dissolution may be appointed to the office of Prime Minister.
There shall be, in addition to the office of Prime Minister, such other offices of Minister of the Government of Lesotho (not being less than seven in number and one of which shall be the office of Deputy Prime Minister) as may be established by Parliament or, subject to any provision made by Parliament, by the King, acting in accordance with the advice of the Prime Minister.
The King shall, acting in accordance with the advice of the Prime Minister, appoint the other Ministers from among the members of the National Assembly or from among the Senators who are nominated as Senators by the King under section 55 of this Constitution:Provided that if occasion arises for making an appointment to the office of Minister other than Prime Minister while Parliament stands dissolved a person who immediately before the dissolution was a member of the National Assembly or such a Senator may be appointed to the office of Minister.
The King may, acting in accordance with the advice of the Council of State, remove the Prime Minister from office–
1. if a resolution of no confidence in the Government of Lesotho is passed by the National Assembly and the Prime Minister does not within three days thereafter, either resign from his office or advise a dissolution of Parliament; or
2. if at any time between the holding of a general election to the National Assembly and the date on which the Assembly first meets thereafter, the King considers that, in consequence of changes in the membership of the Assembly resulting from that election, the Prime Minister will no longer be the leader of the political party or coalition of political parties that will command the support of a majority of the members of the Assembly.
The office of the Prime Minister shall become vacant–
1. if he ceases to be a member of the National Assembly otherwise than by reason of a dissolution of Parliament; or
2. if, when the National Assembly first meets after a dissolution of Parliament, he is not then a member thereof.
The office of a Minister other than the Prime Minister shall become vacant–
1. if he ceases to be a member of either House of Parliament otherwise than by reason of a dissolution of Parliament; or
2. if he becomes a Senator other than a Senator nominated under section 55 of this Constitution; or
3. if, when the two Houses of Parliament first meet after a dissolution he is not then either a member of the National Assembly or a Senator nominated under section 55 of this Constitution; or
4. if the King, acting in accordance with the advice of the Prime Minister, so directs; or
5. if the Prime Minister resigns from office within three days after the passage by the National Assembly of a resolution of no confidence in the Government of Lesotho or is removed from office under subsection (5); or
6. on the appointment of any person to the office of Prime Minister.
A resolution of no confidence in the Government of Lesotho shall not be effective for the purposes of subsections (5)(a) and (7)(e) unless it proposes the name of a member of the National Assembly for the King to appoint in the place of the Prime Minister.

88. Cabinet

There shall be a Cabinet of Ministers, consisting of the Prime Minister and the other Ministers.
The functions of the Cabinet shall be to advise the King in the government of Lesotho, and the Cabinet shall be collectively responsible to the two Houses of Parliament for any advice given to the King by or under the general authority of the Cabinet and for all things done by or under the authority of any Minister in the execution of his office.
The provisions of subsection (2) shall not apply in relation to–
1. the appointment and removal from office of Ministers and Deputy Ministers, the assignment of responsibility to any Minister under section 89 of this Constitution or, save in circumstances set out in the proviso to section 90(3), the authorisation of another Minister under section 90 of this Constitution to exercise the functions of the Prime Minister during the latter’s absence or illness; or
2. the dissolution or prorogation of Parliament.

89. Allocation of portfolios to Ministers

The King, acting in accordance with the advice of the Prime Minister, may, by directions in writing, assign to the Prime Minister or any other Minister responsibility for any business of the Government of Lesotho, including the administration of any department of Government:

Provided that authority to exercise any power or discharge any duty that is conferred or imposed by this Constitution or any other law on the King or on any other person or authority, not being the Minister concerned, shall not be conferred or imposed upon any Minister under this section.

90. Exercise of Prime Minister’s functions during absence, being on leave or illness

Whenever the Prime Minister is absent from Lesotho, is on leave or is by reason of illness unable to exercise the functions conferred on him by this Constitution, those functions (other than the functions conferred by this section) shall be exercised by–
1. the Deputy Prime Minister; or
2. if the office of Deputy Prime Minister is vacant or the Deputy Prime Minister is absent from Lesotho, is on leave or is by reason of illness unable to exercise the functions of the office of Prime Minister, by such other Minister as the King may authorise in that behalf.
A Minister who is authorised by the King in pursuance of subsection (1)(b) to exercise the functions conferred on the Prime Minister by this Constitution may exercise those functions until his authority is revoked by the King.
The powers of the King under this section shall be exercised by him in accordance with the advice of the Prime Minister:Provided that if the King considers that it is impracticable to obtain the advice of the Prime Minister owing to his absence, being on leave or illness, he shall act in accordance with the advice of the Cabinet.

91. Exercise of the King’s functions

Subject to the provisions of section 137(4) of this Constitution, the King shall, in the exercise of his functions under this Constitution or any other law, act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet except in cases where he is required by this Constitution or any other law to act in accordance with the advice of any person or authority other than the Cabinet.
Where the King is required by this Constitution to do any act in accordance with the advice of the Council of State and the Council of State is satisfied that the King has not done that act, the Council of State may inform the King that it is the intention of the Council of State to do that act after the expiration of a period to be specified by the Council of State, and if at the expiration of that period the King has not done that act, the Council of State may do that act themselves and shall, at the earliest opportunity thereafter, report the matter to Parliament; and any act so done by the Council of State shall be deemed to have been done by the King and to be his act.
Where the King is required by this Constitution to do any act in accordance with the advice of any person or authority other than the Council of State, and the Prime Minister is satisfied that the King has not done that act, the Prime Minister may inform the Kin that it is the intention of the Prime Minister to do that act himself after the expiration of a period to be specified by the Prime Minister, and if at the expiration of that period the King has not done that act the Prime Minister may do that act himself and shall, at the earliest opportunity thereafter, report the matter to Parliament; and any act so done by the Prime Minister shall be deemed to have been done by the King and to be his act.
No act of the King shall be valid to the extent that it is inconsistent with an act deemed to be his act by virtue of subsection (2) or (3).
Without prejudice to the generality of section 155(8) of this Constitution, where the King is required by this Constitution to act in accordance with the advice of any person or authority, the question whether he has received or acted in accordance with such advice shall not be enquired into in any court.
In this section, references to a requirement in this Constitution to act in accordance with the advice of some person or authority include references to the advice of, and a recommendation by, a tribunal and to the appointment to a tribunal of persons selected by any person or authority and any such reference shall be construed as a requirement to act in accordance with such advice, recommendation or selection.

92. The King’s right to be consulted and informed concerning matters of government

The King shall have the right to be consulted by the Prime Minister and the other Ministers on all matters relating to the government of Lesotho and the Prime Minister shall keep him fully informed concerning the general conduct of the government of Lesotho and shall furnish him with such information as he may request in respect of any particular matter relating to the government of Lesotho.

93. Deputy Ministers

The King, acting in accordance with the advice of the Prime Minister, may appoint Deputy Ministers, to deputise Ministers in the performance of their duties, from among the members of the National Assembly or from among the Senators who are nominated as Senators by the King under section 55 of this Constitution:Provided that, if occasion arises for making an appointment while Parliament stands dissolved, a person who immediately before the dissolution was a member of the National Assembly or was such a Senator as aforesaid may be appointed as a Deputy Minister.
The provisions of section 87(7) of this Constitution shall apply in relation to a Deputy Minister as they apply in relation to a Minister.
Whenever a Miniser is absent from Lsotho, is on leave or is by reason of illness unable to exercise the functions conferred on him or her by this Constitution, those functions shall be exercised by the Deputy Minister.
If the Minister does not have a Deputy Minister or the Deputy Minister is absent from Lesotho, is on leave or is by reason of illness unable to exercise the functions of the office of Minister, the assignment of responsibility to any Minister under section 89 shall apply.

94. Oath to be taken by Ministers and Deputy Ministers

A Minister or a Deputy Minister shall not enter upon the duties of his office unless he has taken and subscribed an oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.

95. The Council of State

There shall be in and for Lesotho a Council (to be styled the Council of State) to assist the King in the discharge of his functions and to exercise such other functions as are conferred by this Constitution.
The Council of State shall consist of–
1. the Prime Minister;
2. the Speaker of the National Assembly;
3. two judges or former judges of the High Court or Court of Appeal who shall be appointed by the King on the advice of the Chief Justice;
4. the Attorney-General;
5. the Commander of the Defence Force;
6. the Commissioner of Police;
7. a Principal Chief who shall be nominated by the College of Chiefs;
8. two members of the National Assembly appointed by the Speaker from among the members of the opposition party or parties. In making this appointment the Speaker shall appoint the leader of the opposition and the leader of the opposition party or coalition of parties having the next greatest numerical strength. If there is only one opposition party the Speaker shall appoint another member of that party;
9. not more than three persons who shall be appointed by the King on the advice of the Prime Minister, by virtue of their special expertise, skill or experience:Provided that no person shall be appointed under this paragraph if he is disqualified to be elected as a member of the National Assembly under section 59 of this Constitution;
10. a member of the legal profession in private practice who shall be nominated by the Law Society established by the Law Society Act 1983, or by some other professional body established under any law replacing the Law Society Act 1983.
A person who is not a citizen of Lesotho shall not be eligible to sit as a member of the Council of State.
Subject to subsection (5), a member of the Council of State referred to in subsection (2)(c), (g), (i) or (j) shall hold office for a period of six years but shall be eligible for reappointment as a member of the Council of State.
A member of the Council of State shall vacate his office–
1. in the case of a member referred to in subsection (2)(a), (b), (d), (e) or (f), if he ceases to hold the office by virtue of which he became such a member;
2. in the case of a member referred to in subsection (2)(c) if the King, acting in accordance with the advice of the Chief Justice, so directs;
3. in the case of a member referred to in subsection (2)(g), if he is removed by the College of Chiefs;
4. in the case of a member referred to in subsection (2)(h), if he ceases to be such leader as is mentioned in subsection (2)(h) or when the National Assembly first meets after a dissolution of Parliament, whichever first occurs;
5. in the case of a member referred to in subsection (2)(i), if he is removed by the King on the advice of the Prime Minister:Provided that the provisions of section 142 (4) to (7) shall apply to any such member as they apply to a person holding the office of Auditor-General;
6. in the case of a member referred to in subsection (2)(j) if he is removed by the Law Society or such other professional body as is mentioned in subsection (2)(j).
The quorum of the Council of State is eight and subject thereto the Council may act notwithstanding any vacancy in its membership.
Meetings of the Council of State shall be summoned by the King and its advice shall be tendered in writing.
If the King does not call a meeting of the Council of State for consideration of any matter on which the advice of the Council is required, the Prime Minister shall summon a meeting of the Council of State, failing which any member of the Council, supported by not less than seven other members, may call a meeting of the Council of State.
The King may attend any meeting of the Council and, if he does attend, shall preside; in the absence of the King the Prime Minister or such other member as may be prescribed by its rules of procedure shall preside at meetings of the Council.
The Council of State may request any public officer or any other person holding or acting in any office established by or under this Constitution or any authority so established to assist it in the exercise of its functions (whether by way of attendance before the Council or otherwise) and any such officer or authority shall comply with any such request.
Subject to the provisions of this section, the Council of State may regulate its own procedure.

96. Principal Secretaries

Where any Minister has been charged with responsibility for any department of government, he shall exercise general direction and control over that department and, subject to such direction and control, every department of government shall be under the supervision of the Principal Secretary whose office shall be an office in the public service:

Provided that two or more government departments may be placed under the supervision of one Principal Secretary.

97. Government Secretary

There shall be a Government Secretary whose office shall be an office in the public service.
The Government Secretary, who shall have charge of the Cabinet Office, shall be responsible, in accordance with such instructions as may be given to him by the Prime Minister, for arranging the business for, and keeping the minutes of, the Cabinet, for conveying the decisions of the Cabinet to the appropriate person or authority and shall have such other functions as the Prime Minister may from time to time direct or as may be conferred on him by any other law.

98. Attorney-General

There shall be an Attorney-General whose office shall be an office in the public service.
It shall be the duty of the Attorney-General–
1. to provide legal advice to Government;
2. to exercise ultimate authority over the Director of Public Prosecutions;
3. to take necessary legal measures for the protection and upholding of this Constitution and the other laws of Lesotho;
4. to exercise or perform any of the rights, prerogatives, privileges or functions of the State before courts or tribunals; and
5. to perform such other duties and exercise such other powers as may be conferred on him by this Constitution or any other law.
The Attorney-General may exercise his functions personally or through officers subordinate to him in accordance with his general or special instructions.
In the exercise of the functions vested in him by subsection (2)(a) and (b) and section 69 of this Constitution, the Attorney-General shall not be subject to the direction or control of any other person or authority.
The Attorney-General shall take and subscribe such oath of office for the due execution of his functions as may be prescribed by Parliament.

99. Director of Public Prosecutions

There shall be a Director of Public Prosecutions whose office shall be an office in the public service.
The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do–
1. to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;
2. to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; and
3. to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.
The powers of the Director of Public Prosecutions under subsection (2) may be exercised by him in person or by officers subordinate to him acting in accordance with his general or special instructions.
The powers conferred on the Director of Public Prosecutions by subsections (2)(b) and (c) shall be vested in him to the exclusion of any other person or authority except the Attorney-General:Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.
For the purposes of this section, any appeal from a judgement in criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings, to any other court shall be deemed to be part of those proceedings:Provided that the power conferred on the Director of Public Prosecutions by subsection (2)(c) shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved at the instance of such a person.
Save as provided in section 98(2)(b) of this Constitution, in the exercise of the functions conferred on him by subsection (2) of this section or section 77 of this Constitution the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.

100. Constitution of offices

Subject to the provisions of this Constitution and of any other law, the King may constitute offices for Lesotho, make appointments to any such office and terminate any such appointment.

101. Prerogative of Mercy

The King may–
1. grant to any person convicted of any offence under the law of Lesotho a pardon, either free or subject to lawful conditions;
2. grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;
3. substitute a less severe form of punishment for any punishment imposed on any person for such an offence; and
4. remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the King on account of such an offence.
The powers of the King under subsection (1) shall be exercised by him acting in accordance with the advice of the Pardons Committee.

102. Pardons Committee on Prerogative of Mercy

There shall be a Pardons Committee on the Prerogative of Mercy which shall consist of a Chairman and two other members appointed by the King acting in accordance with the advice of the Judicial Service Commission from among persons who are not public officers or members of either House of Parliament.
The office of the Chairman or of any other member of the Committee appointed under subsection (1) shall become vacant–
1. at the expiration of three years from the date of his appointment; or
2. if the King, acting in accordance with the advice of the Judicial Service Commission, so directs; or
3. if any circumstances arise that, if he were not a member of the Committee, would cause him to be disqualified to be appointed as such under subsection (1).
The Committee may act notwithstanding any vacancy in its membership 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.
The Committee may regulate its own procedure.

103. Chiefs

The twenty-two offices of Principal Chief set out in Schedule 2 to this Constitution and the other offices of Chief recognised under the law in force immediately before the commencement of this Constitution shall continue to exist.
Parliament may make provision for the regulation of offices of chief.
Each Chief shall have such functions as are conferred on him by this Constitution or by or under any other law.

104. College of Chiefs

There shall be a College of Chiefs which, subject to the provisions of subsection (3), shall consist of the twenty-two Principal Chiefs.
The College of Chiefs shall have the functions conferred on it by section 45 and section 46 of this Constitution and the duty to maintain and safeguard the national archives in relation to those functions, and it shall also have such other functions as may be conferred on it by any other law.
The College of Chiefs may, by resolution, co-opt members to assist it in the performance of its functions:Provided that such co-opted members shall not exceed three in number at any one time.
A co-opted member of the College of Chiefs may attend and take part in all meetings of the College but he shall not be entitled to vote on any question before the College.
The College of Chiefs 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 College shall require the concurrence of a majority of all the members thereof (other than the co-opted members).
Subject to the provisions of this section, the College of Chiefs may regulate its own procedure.

105. National Advisory Planning Board

There shall be a National Advisory Planning Board which shall consist of the following members,
1. not more than three persons for the time being designated in that behalf by the King, acting in accordance with the advice of the Council of State;
2. not more than six persons who are for the time being designated in that behalf by a Minister or Ministers specified by the Prime Minister and who possess such professional qualifications as, in the opinion of the relevant Minister, will enable them to make a special contribution to the work of the Board;
3. not more than three persons for the time being designated in that behalf by such organisations representative of local government authorities as may be so designated by the Minister for the time being responsible for local government;
4. not more than three persons for the time being designated in that behalf by such organisations representative of the private sector as may be so appointed by the Minister for the time being responsible for trade and industry; and
5. not more than three persons for the time being designated in that behalf by livestock farmers and other agro-allied associations.
The functions of the National Advisory Planning Board shall be,
1. to advise the Minister responsible for development planning on –
  1. issues relating to the planning and budgeting systems;
  2. the alignment of the medium-term expenditure framework approach with strategic planning documents;
  3. the integration of district planning activities in the national planning system; and
  4. the preparation of guidelines for planning activities;
2. to review progress –
  1. towards achievement of targets, goals and objectives of the national vision and provide advice on the procedures to be followed in the periodic updating of the national vision; and
  2. on the inclusion of poverty reduction priorities in the planning and budgetary system.
Parliament may make provision for the purpose of giving effect to the provisions of this section and in particular may make provision in respect of the following:–
1. the election of Chairman;
2. the term of office of members of the National Advisory Planning Board; and
3. the procedure of the National Advisory Planning Board.
The National Advisory Planning Board shall –
1. prior to each financial year, submit an annual work-plan and budget to the Minister responsible for development planning; and
2. at the end of each financial year, submit an annual report on the activities of the Board to the Minister responsible for development planning shall table the report before Cabinet and Parliament.
The Minister responsible for finance and development planning shall table the report before Cabinet and Parliament.

106. Local authorities

Parliament shall establish such local authorities as it deems necessary to enable urban and rural communities to determine their affairs and to develop themselves. Such authorities shall perform such functions as may be conferred by an Act of Parliament.
Any enactment which provides for the establishment of a local authority and in force immediately before the coming into operation of this Constitution shall continue in force subject to repeal or modification by Parliament.