Law society concerned by exclusion of human rights

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By Mamello Mosaefane

Law Society of Lesotho has raised its concerns in its position paper to the National Reforms Authority, on the exclusion of certain fundamental human rights it considers important, from the country’s Bill of Rights.

The position paper, compiled by Advocate Tekane Maqakachane, the Law Society’s reigning President indicates the Bill of Rights is limited in its scope.

He argues the Bill of Rights excludes some of the fundamental human rights and freedoms that include among others; “human dignity, right to fair labor, environmental right, children’s rights, access to information, consumer rights fair or just administrative actions”.

The law society in an example referred to Section 28 of the Constitution of Kenya, which states that every person, has inherent dignity and the right to have that dignity respected and protected.

Maqakachane said its admiration of section 41 of Kenyan and 23 of South African constitutions that state that everyone has the right to fair labor practices, and every worker to form and join trade unions, to participate in activities and programs of a trade union as well to strike.

He said the Law Society proposed that the scoop and reach of the new constitution of Lesotho in progress be stretched to include those fundamental rights and freedoms.

Maqakachane further said the Law Society is concerned in the fundamental rights and freedoms which are now classified as directive principles of state policy that are unenforceable, arguing they should be included in an enforceable Bill of rights.

The reason behind this demand, Maqakachane said is that, currently, the Bill of rights provisions (chapter 11) of the constitution is enforced only by a person whose own rights or freedom are allegedly infringed or some person on behalf of the one who is detained.

This, the Law Society said raises a critical concern as to who has a legal right to enforce the remaining part of the constitution apart from the Bill of rights as per chapter 11.

“Should political and executive misconduct go unpunished simply because there is no one directly affected or whose right has been infringed?” reads the Law Society’s position paper.

Law Society has said the way the common law approaches legal right is very narrow and as a result, breeds the impunity and invincible wall behind which unconditional laws and conduct go unpunished.

Maqakachane said the Kenyan constitution is again denoted in this issue, as it provides “specific” standing rules for enforcement of the fundamental rights and freedoms under section 22, and for the enforcement of the constitution “as a whole” under section 258.

He further said a liberalized standing rules-public interest standing is thus proposed to raise constitutional issues before any courts of law and tribunal; whether issues of human rights, constitutional principles (separation of powers), independence of the judiciary.

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