Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013 Page: 168
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Texas Journal of Women and the Law
that were not necessarily supportive of democracy. The Constituent
Assembly tasked with reviewing the Constitution did no more than rewrite
the 1966 version.62 This was partly because there was not enough time to
collate views and conduct research on substantial constitutional issues.63
There was also no opportunity to educate members of the assembly on how
to undertake constitutional review. Thus, when confronted with issues of
human rights, they lacked the sophistication to balance competing interests
and views and consolidate national values into a workable constitutional
dispensation. Instead, when disagreement arose, the safest approach was to
re-enact the 1966 version with only minor adjustments. Therefore,
members of the assembly squandered an opportunity to put Lesotho on a
solid democratic path. Significantly, however, the new dispensation failed
to create a more robust framework for protection of rights given past
experiences.
It may be useful, therefore, to examine some of the factors that made
Lesotho's transition from military rule to democracy such a farce. In many
African countries, similar transitions often delivered new constitutions with
an expanded regime of rights. For example, the South African transition
from apartheid in 1994 led to the adoption of the 1996 Constitution.64
Similarly, Kenya's transition from Moi's dictatorial regime, coupled with a
messy general election, finally yielded the long-awaited constitutional
change in 2010.65 In general, these constitutions offer the best rendition of
rights guarantees Africa has ever had.66 They also demarcate, in rather
brave terms, the path for judicial intervention in matters of socioeconomic
rights.67 Why, then, was Lesotho's transition so muted? Why did its
62. The Constituent Assembly was established according to Order No. 4 of 1990. Its
members were sworn in on June 1990. See Pule, supra note 28, at 193-95; Southall, supra
note 41.
63. See K.A. Maope, A Note on Discrimination and Section 18 of the Constitution of
Lesotho, 14 LESOTHO L.J. 395, 399 (2001) (discussing the section of the Constitution that
both permitted and prohibited discrimination).
64. See Daisy M. Jenkins, From Apartheid to Majority Rule: A Glimpse into South
Africa's Journey Towards Democracy, 13 ARIZ. J. INT'L & COMP. L. 463, 479-88 (1996)
(examining critical hurdles surrounding the development and implementation of a new
constitution in post-apartheid South Africa).
65. See Laurence Juma & Chuks Okpaluba, Judicial Intervention in Kenya's
Constitutional Review Process, 11 WASH. U. GLOBAL STUD. L. REv. 287, 293, 343-51
(2012) (discussing the period of reform leading to the new Constitution).
66. See, e.g., Mark S. Kende, The South African Constitutional Court's Construction of
Socio-Economic Rights: A Response to Critics, 19 CONN. J. INT'L L. 617, 618 (2004) (noting
that the South African Constitution has "one of the most comprehensive Bills of Rights in
the world, encompassing the first, second, and third generation of human rights").
67. It is notable that the new constitutions, especially the South African one, have made
socioeconomic rights justiciable. See Fons Coomans, Some Introductory Remarks on the
Justiciability of Economic and Social Rights in a Comparative Constitutional Context, in
JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS: EXPERIENCES FROM DOMESTIC SYSTEMSVol. 22:2
168
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University of Texas at Austin. School of Law. Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013, periodical, Spring 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth638862/m1/46/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.