Research Articles

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Now showing 1 - 20 of 24
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    The Advent of Coalition Politics and the Crisis of Constitutionalism in Lesotho
    (2017-01-08) 'Nyane, H
    The advent of coalition politics in the aftermath of the inconclusive 2012 election brought with it fresh challenges to constitutionalism in Lesotho. The challenges started with the process of the formation of government, sustenance of a coalition, and much more importantly, the executive powers of the office of Prime Minister. The country transitioned into the era of coalition politics with the same constitutional and legal framework which undergirded government in a single-party majoritarian setup. It did not take long until the country was plunged into a constitutional crisis which manifested itself through a stand-off between the Prime Minister and the Deputy Prime Minister. The crisis led to the collapse of the coalition government, barely two years into its normal electoral cycle. The purpose of this chapter is to analyse the nature of this constitutional crisis by studying the various constitutional episodes which characterised this crisis in 2014. The chapter contends that while some of these episodes may qualify to be called ‘constitutional crises’, not all incidences of political disagreement amounted to that.
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    Assignment of functions to local authorities in Lesotho
    (UTS ePress, 2016-12) Nyane, H.
    In Lesotho the adoption of the new constitution in 1993 made provision for local development. These constitutional provisions were only operationalised in 1997 through an Act of parliament (Local Government Act 1997). The question of how functions are assigned between the central and local governments has always been an area of dispute. The Act attempted to demarcate the assignments through the Schedules to the Act which embody the functions of local authorities at various levels – community councils, urban councils and district councils. However, local development and service delivery continue by and large to be undertaken by central government despite the demarcation. The purpose of this paper, therefore, is to critically analyse the challenges of assignment of functions to local authorities in Lesotho. The paper contends that as the assignment of functions is integral to decentralisation in Lesotho, intergovernmental relations and assignment of functions should be incorporated into the country’s constitution.
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    Conflicts between Applicable Law and the Law of the Seat and the Limitations of Judicial Review of Arbitral Awards: Lessons from Lesotho Highlands Development Authority (LHDA) vs. Impregilo Spa
    (Lesotho Law JournaL, 2013) Tsietsi, T.
    A mixed international arbitration involves parties from two different States. The parties agree on the applicable law, which is the substantive law to be applied by an arbitral tribunal. The seat of arbitration, however, also plays a fundamental role by elucidating the applicable procedural rules. This is the lex arbitri. Sometimes arbitrators can find it difficult to determine which law is applicable to which issues. This was the case in LHDA v Impregilo1.
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    Constitutionalisation and Constitutional Amendment in Lesotho: A Case for Substantive Limitations
    (Lesotho Law Journal, 2014) Mohau, K. K.
    The idea of a limited government encapsulated in the concept of constitutionalism is, like all ideals, capable of realization to differing degrees from country to country, and even at different times in one country's constitutional development. Constitutional amendment is indispensable to constitutional development but, like a double edged sword, the process is capable of either helping or hurting a country's project to build a constitutional state. This paper evaluates the amendment process provided for in the Constitution of Lesotho. It makes a case for adopting substantive limitations to the Constitution's amendment as a means of ensuring the continued respect for constitutionalism.
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    The Constitutionalisation of Labour Law in Lesotho
    (Lesotho Law Journal, 2014) Mosito, K. E.
    This paper discusses the intersection between constitutional provisions and labour law in Lesotho. It identifies and discusses the fundamental human rights and freedoms as well as the principles of state policy embodied in the Constitution of Lesotho. It goes on to discuss the impact that each one of the Chapter II and Chapter III provisions has on labour relations, thereby determining the extent to which there exists an intersection between constitutional law and labour law. It also brings to the fore the judicial interventions that have taken place in Lesotho within the context of the intersection of constitutional law and labour law.
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    Developments of Constitutional Democracy: 20 Years of the Constitution of Lesotho.
    (Lesotho Law Journal, 2014) Nyane, H.
    The Lesotho Constitution of 1993, although it bears all the hallmarks of the erstwhile British colonies, ushered in a paradigmatic shift in the development of constitutional democracy in Lesotho. It came to break a long haul of nonconstitutionalism combined with military rule. The constitution therefore introduces a new order based on popular government and multi-partyism as opposed to militarism and one-party dictatorship; rule of law as opposed to arbitrariness and hope as opposed to despondency. The purpose of this article therefore is to evaluate not only how the doctrine of constitutional democracy permeated the post-colonial constitutional design in Lesotho, but also how it has practically fared in constitutional practice. The essay starts-off by placing the 1993 Constitution within its typology and then assesses the theory of constitutionalism. The major strands of constitutionalism are evaluated, namely; separation of powers, the rule of law and independence of the judiciary in the context of the post 1993 constitutional dispensation.
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    The Enforcement, Adjudication and Monitoring of Social Security Rights in Lesotho,
    (Lesotho Law Journal, 2013) Mosito, K. E.
    Contemporary discourse on social security rights and their enforcement, adjudication and monitoring occupies a centre stage in the sustainability of any social security system of a country. This discourse has acquired an interesting but rather controversial appellation as to what an efficient social security system should look like. This paper explores the nature of the enforcement, adjudication and monitoring system of social security rights in place in Lesotho. It discusses the various mechanisms used and provided for by the law of Lesotho in this area and, evaluates their effectiveness or otherwise, in the process. It concludes by highlighting the weaknesses and strengths.
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    Formation of a Government in Lesotho in the Case of a Hung Parliament
    (University of the Western Cape (UWC), 2016) Nyane, H.
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    Freedom of association and social dialogue with informal economy workers in Lesotho – a study of unwaged street vendors
    (Sehapi - Kulehile, Regina, 2013) Sehapi - Kulehile, Regina
    The article looks into the question whether unwaged workers enjoy freedom of association, and are involved in social dialogue with the state to promote interests of workers. It establishes the connection between the concepts of freedom of association and social dialogue. The article revolves around unwaged street vendors of Lesotho. International standards of International Labour Organization, and statutes of Lesotho are examined. The examination reveals that the unwaged vendors do not enjoy freedom of association, nor are they involved in social dialogue. This is due to Lesotho’s Labour Code which caters for employees alone and excludes unemployed workers, hence rights of workers are not extended to them; again, there are inappropriate statutes and frameworks which lead to non recognition of legitimate associations of unwaged workers, and there are no structures that cater for social dialogue with this group of workers. The article recommends amendment of the Labour Code for it to extent right to freedom of association to all workers, including unwaged workers; removal of inappropriate frameworks which cloud recognition of workers unions, without recognition of associations, social dialogue becomes ineffective. The state must also establish structures which develop and promote social dialogue. Without recognition of these concepts, unwaged workers remain trapped in poverty.
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    The Impact of the HIV/AIDS Pandemic and the Labour Laws of Lesotho
    (Lesotho Law Journal, 2013) Kometsi, L.
    Laws and policy documents have been developed in an attempt to deal with the pandemic of HIV and AIDS. It is universally recognized that HIV/ AIDS affects mostly the working populations.1 Hence the best place to concentrate efforts at combating the disease is at the workplace. One of the methods of dealing with this disease is through screening of HIV infection at the workplace. This raises issues of discrimination where it may be used as a yardstick to determine the employability of a person or the mobility of an employee in the work ladder. The Constitution of Lesotho provides that 'Subject to the provisions of subsections (4) and (5) no law shall make any provision that is discriminatory either of itself or in its effect' 2 The National AIDS Policy of Lesotho states in clear terms that to deny a person employment on the basis of his or her HIV status is tantamount to discrimination. Yet there are institutions which have made it compulsory for any applicant to test HIV before being employed. There seem to be very strong and persuasive reasons for mandatory testing of HIV at all sections of the society especially at the production sectors. This paper argues that the path followed by Lesotho in policy formulation seems to be heading towards making it mandatory for every one to test for HIV/AIDS despite the constitutional provisions and the principles of the policy. However, the solution can be not to rely entirely on voluntary testing thus neglecting the importance of knowing the HIV status of all employees in any one organization-but reserve the power or right to demand mandatory
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    In search of liberation pedagogy in South Africa
    (Boston University School of Education, 1990) Jansen, Jonathan D.; jonathan.jansen@up.ac.za
    Presents the author's reflections regarding education in South Africa under apartheid rule. Defects of racist education; Discussion of some of the author's teaching assignments.
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    Interfacing Climate Change with Local Governance in Lesotho
    (UNDP Socio-Economic Policy Review, 2013) Nyane, H.
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    The Legal Protection of Minority Languages in Lesotho: The Case of sePhuthi Language of eBaphuthi
    (Lesotho Law Journal, 2014) Kometsi, L.
    Focus of this paper will be mainly on siPhuthi as one of the minority languages and the need for its protection as an endangered language of the Kingdom of Lesotho. The aim of the paper is to argue for the constitutional or legal protection of the language of siPhuthi and other minority languages in Lesotho to avoid their extinction but mostly to afford speakers of the languages as their mother tongues, their natural rights to realise all uses of a language. This is done by first looking at the definitions and different uses of a language and what is meant by 'minority languages'. Next the paper deals with whether siPhuthi is a language of the minority. The paper then takes an overview of what the situation of the language of siPhuthi and the other minority languages in Lesotho is. This overview will include an analysis of the extent to which siPhuthi is an endangered language in comparison to the other languages. Lastly the paper explores the avenues open for the protection of the language.
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    Lesotho Bracing for the Second Wave of Decentralization.
    (UNDP Socio-Economic Policy Review, 2013) Nyane, H.
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    The Notion of Acceptance of Law in the Implementation of Rules: The WTO TRIPS Agreement in Lesotho
    (Lesotho Law JournaL, 2013) Thamae, K.
    The TRIPs Agreement came into force in 1995, as an annex to the Agreement Establishing the World Trade Organization (WTO), the WTO Agreement.1 By ratifying the WTO Agreement, members automatically and necessarily became bound by agreements that came with the formation agreement. As a result, all WTO member states became bound to implement the TRIPs Agreement. The TRIPs Agreement is the prevailing international instrument on intellectual property (IP) and it sets out the minimum IP standard for all WTO member states. Lesotho became a member of the WTO in 1995. Despite this, the country has up to now failed to implement the agreement into the national IP law. No steps have as yet been taken to commence the implementation. Lesotho's national IP law is therefore still below the prevailing international standard set by TRIPs. This paper looks at challenges of implementation of the agreement in the context of Lesotho. The notion of acceptance of law is applied here as a test for successful implementation. This test is derived from Hart's theory of law or jurisprudence on what constitutes a municipal legal system and it looks at how the law is perceived by those responsible for implementation. Various factors that affect or influence acceptance are outlined and discussed. It is shown that Lesotho fails the test of
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    A Panoramic View of the Social Security and Social Protection Provisioning in Lesotho
    (Lesotho Law Journal, 2014) Mosito, K. E.
    The paper is divided into four main sections. The first section briefly deals with the conceptualisation of social security in Lesotho. The second section carries out an overview of the current social security system of Lesotho with a view to determining its status and the extent to which it needs improvement. The third step will be to evaluate the system from a social policy perspective with the object of identifying its strengths and weaknesses, employing some critical social security benchmarks. Lastly, by way of conclusion, some salient issues resulting from the discussion in this article will be highlighted.
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    Patentability of Nanotechnology Inventions: Does it Mark a Shift in Patent Law's Normative Orientation?
    (Lesotho Law Journal, 2013) Shale, R.
    It is commonly believed that small sizes do not matter, but in the field of nanotechnology, the smallest size of matter is all that matters. Nanotechnology refers to a set of techniques used to manipulate,1 image, measure, and model matter at dimensions [roughly] between 1 and 100 nano-meters. 2 These dimensions are otherwise known as nano-scale.3 At this length scale, the physical, chemical and biological properties of matter such as conductivity, magnetism, elasticity, reactivity, quantum mechanics, melting temperature and colour may change in unusual and unexpected ways.4
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    Public Servants' Right to Strike in Lesotho, Botswana and South Africa: A Comparative Study.
    (Potchefstroom Electronic Law Journal, 2014) Matee, L.
    Freedom of association and its cornerstone, the right to strike, are integral to effective labour relations and a free and democratic society. Industrial action serves as a vital counterpoint to managerial prerogative and ensures a fair balance between employer and employee interests in the workplace. The International Labour Organisation (ILO) has promulgated a number of conventions and recommendations promoting the freedom of association,1 including the Convention on Freedom and Protection of the Right to Organise2 (Convention No 87) and the Convention on the Right to Organise and Collective Bargaining3 (Convention No 98).4 Convention No 87 protects the rights of workers and employers without differentiation to establish and join organisations for occupational purposes and guarantees their free functioning. Convention No 98 prohibits anti-union discrimination at the workplace and protects against employers' interference in the affairs of employees' organisations. These two conventions are amongst the most ratified conventions of the ILO.5 By ratifying these conventions, member states undertake to extend the rights and freedoms contained in or created by the conventions to their respective nationals.