Emergency Powers and Human Rights Derogations under the Constitution of Lesotho

Abstract

Constitutions worldwide occasionally encounter moments of public emergency when deviation from the ordinary normative framework  becomes inevitable. Hence, constitutions have provisions that regulate public emergencies. The Constitution of Lesotho is no exception: it  has provisions for derogation from its ordinary constitutional framework. Section 21 read with section 23 provides substantive and  procedural requirements for the declaration of a state of emergency and derogation from human rights. This constitutional framework  exists alongside four incoherent pieces of legislation: the Public Health Order of 1970, the Internal Security Act of 1984, the Emergency  Powers Order of 1988 and the Disaster Management Act of 1997. Three of these pieces of legislation predate the 1993 Constitution of Lesotho. Consequently they are not in harmony with the Constitution. This disharmony creates uncertainty in the legal system and  negatively impacts on the rights of citizens during emergencies. The pieces of legislation grant the government a leeway to derogate  from human rights standards without following the Constitution's stringent substantive and procedural requirements. The purpose of  this article is to shine the spotlight on this discordance. The article's central argument is that the country needs a new emergency powers  legal regime. This will involve reviewing the Constitution and aligning legislation on emergency powers with the Constitution.