Emergency Powers and Human Rights Derogations under the Constitution of Lesotho

Abstract

Constitutions worldwide occasionally reach moments of public emergency when deviation from the ordinary normative framework is inevitable. To regulate the exercise of public power even during such moments, constitutions have provisions for emergencies and derogation from the normative frameworks. The Constitution of Lesotho is no exception. Section 21, read with section 23, provides both procedural and substantive requirements for the use of emergency powers and derogation from human rights. This constitutional framework exists alongside other pieces of legislation, such as the Public Health Order of 1970, the Emergency Powers Order of 1988 and the Disaster Management Act of 1997. These pieces of legislation, except the Disaster Management Act, predate the Constitution. Hence, they are not in harmony with the Constitution. The two recent incidences of using emergency powers – the 2020 coronavirus-induced state of emergency and the 2022 recall of parliament state of emergency. These two incidences laid bare two problems relating to the emergency powers regime in Lesotho. Firstly, there is no harmony between the Constitution and pieces of legislation relevant to the use of emergency powers. Secondly, the jurisprudence of the superior courts on the subject is still underdeveloped. The purpose of this article is to critically analyse the constitutional and legislative framework for exercising emergency powers and human rights derogation in Lesotho.