Introduction

This essay critically discusses the doctrine of ministerial responsibility as it obtains under the
constitution of Lesotho. In doing this, the essay begins with a discussion of the notion of
collective ministerial responsibility under the constitution of Lesotho; the constitution and the
authority of the King of Lesotho; the conflict between the practical application of collective
ministerial responsibility and the authority of the Prime Minister to act alone; and the doctrine of
the collective responsibility in Lesotho. Finally, the essay touches on collective ministerial
responsibility in another jurisdiction.

Doctrine of collective ministerial responsibility

Generally, collective ministerial responsibility evolved conventionally as a matter of practice.

Ministers are required to show public solidarity; they should never disagree with each other
publicly. It also hinges strongly on confidentiality. It implies that what transpires in cabinet
remains in cabinet. Smith states that the British political scientist David Butler identifies two key
elements to collective ministerial responsibility. First, it means that every minister who is aware
of government policy must defend it to the hilt or keep silent about it. The second element of the
doctrine is that if a government is defeated on a vote of confidence, it must recommend a
dissolution or it must resign.

Collective ministerial responsibility under the Constitution of Lesotho

Collective ministerial responsibility is provided for in Section 88 of the Constitution of Lesotho 1.

Subsection 1 of section 882 of the Constitution states inter alia that that the cabinet of Ministers
shall consist of the Prime Minister and the other Ministers. The use of the peremptory provision
“shall” is indicative of the mandatory requirement of the Cabinet. The functions of the Cabinet
are outlined in subsection 2 of section 83. It is first is to advise the King. The notion of collective
responsibility is also reinforced in this section where it states that the “Cabinet shall be
collectively responsible to the two Houses of Parliament for any advice given to the King by or
under the general authority of the Cabinet and for all things done by or under the authority of any

1Section 88 of the Constitution of Lesotho

2 Section 89(1) of the Constitution of Lesotho

3 Section 88(2) of the Constitution of Lesotho

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Minister in the execution of his office”. In subsection 3 of Section 88 4 of the Constitution, a
number of exceptions have also been provided for under the principle of collective ministerial
responsibility. The exceptions provided are as follows:

(a) the appointment and removal from office of Ministers and Assistant Ministers, the assignment
of responsibility to any Minister under section 89 of this Constitution or, save in circumstances
set out in the proviso to section 90(3) 5, the authorisation of another Minister under section 90 of
this Constitution to exercise the functions of the Prime Minister during the latter's absence or
illness; or

(b) the dissolution or prorogation of Parliament.

Section 91 (1)6 states the King shall act in accordance with the advice of the Cabinet or acting
under the general authority of the Cabinet while exercising his functions under the constitution or
any other law. The King’s conduct is, however, subject to the provisions section 137 (4) 7 of the
Lesotho Constitution. Besides the limitation placed on the King by the constitution, the
constitution recognises that any other law may require the King to act in accordance with the
advice of any person other than the Cabinet.

The Constitution and the authority of the King

It should be pointed out that the King of Lesotho is a constitutional monarch. The authority that
the King wields has therefore been prescribed by the constitution and is limited by it. The
executive government of Lesotho is vested in the King by Section 86 of the Lesotho’s
Constitution. However, he exercises this power through officers and authorities of the
government of the day. It for this reason that Section 91 (1) 8 directs that he should act with the
advice of the “Cabinet or Minister acting under the general authority of the Cabinet”. Thus, the
function of Cabinet is to advise the King as is captured in Section 88(2) 9 of the Constitution. In

4 Section 88(3) of the Constitution of Lesotho

5 Section 90(3) of the Constitution of Lesotho

6 Section 90(1) of the Constitution of Lesotho

7 Section 137(4) of the Constitution of Lesotho

8 Section 90(1) of the Constitution of Lesotho

9 Section 8(2) of the Constitution of Lesotho

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addition, the constitution makes it clear in Section 98(2) 10 that it is the Cabinet and not the King
that is responsible to parliament for that advice and its consequences. Furthermore, Section 91
(1)11 makes it obligatory to act exclusively on the advice of the Prime Minister in certain matters.

Conflict between collective ministerial responsibility and the authority of the Prime
Minister to act alone

Section 83 (4) of the Constitution states unequivocally that the King must act on the advice of
the Prime Minister to dissolve or prologue parliament. This provision is peremptory. Similarly,
the King makes a number of appointment under the Constitution on the advice of the Prime
Minister 12. Although these exceptions on the surface appear to be straight forward, they have,
however, been the subject of constitutional litigation and the Constitutional Court of Lesotho and
the Court of Appeal have been called upon on some occasions to interpret these provisions.

In the case of the Attorney-General v. His Majesty the King and Others 13, the then Attorney-
General of Lesotho appealed to the Court of Appeal, praying the court to declare unconstitutional
the appointment by the King of the President of the Court of Appeal on the grounds that
appointment violated the constitution and the age-old doctrine of collective ministerial
responsibility. It should be mentioned that his initial suit to the High Court was dismissed
because it lacked locus standi.

The facts of the case are that the King appointed the President of the Court of Appeal of Lesotho
acting on the sole advice of the Prime Minister. The issue at stake was whether principle of
collect ministerial responsibility had been violated by the Prime Minister because of his failure
inform his cabinet before advising the king to appoint the president of the court of appeal. The
Attorney-General who was the appellant in this case objected to King’s appointment of the
president of the Court of Appeal on the grounds that by virtue of Section 88 14 of the Constitution
10 Section 98(2) of the Constitution of Lesotho

11 Section 91(1) of the Constitution of Lesotho

12 For a list of these appointments, refer to Section 14(7), Section 121(7), Sections 132(1)(d) and 132(7), Sections
132(6) and (7) and Section 120(1). Other relevant sections are 120(4), 124(1), 124(2), 134 (1), 140(1), 142(1) and
143(1).

13 This is a constitutional case, unreported case number 02/2015. It is a Court of Appeal Decision C Of A (CIV)
13/2/2015

14 Section 88 of the Constitution of Lesotho

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of Lesotho, it was wrong for the Prime Minister to have appointed the President of the court of
appeal without informing them. On the other hand, the Prime minister contended that by the
plain wording of Section 124 (1)15 of the Constitution of Lesotho, he enjoyed the sole prerogative
to advise the King and the requirement to consult his Cabinet as alleged by the Attorney-General
did not apply. The court took the position and ruled that it was the sole preserve of the prime
minister to advise the king on the appointment of the Chief Justice, President of the Court of
appeal.

The doctrine of collective ministerial responsibility in Lesotho

This case brings into sharp relief the doctrine of collective ministerial responsibility as applied in
Lesotho in particular and in other jurisdictions in general. In his landmark judgement, the Court
of Appeal presided over by Justice Wallis espoused several tenets of the doctrine of collective
ministerial responsibility. Justice Wallis clearly distinguished between the narrow and strict
concept of collective ministerial responsibility canvassed by the Attorney-General, on one hand,
and the broader doctrine of collective responsibility espoused by the Constitution of Lesotho and
also obtained from convention and practices on the other.

The court posited that like the role of the Prime Minister in the Westminster system, the Prime
Minister of Lesotho was a primus inter pares who forms a cabinet and decides which matters the
cabinet is likely to deliberate on. The court also took the position that collective responsibility
comes with collective decision-making and once the Prime Minister decides on a matter alone,
other members of his cabinet are bound by that decision. Referring specifically to Section
91(1)16, the court contended that there was a clear distinction between instances where cabinet
gave advice to the King and cases where advice was to be given by other persons other than the
cabinet.

On the basis of this postulation, the court argued that it was not in all instances that the Prime
Minister had to seek the advice of his cabinet and one such instance was the appointment of the
President of the Court of Appeal. Further, the court referring to Professor Maitland’s seminal
lectures on the Constitutional History of England and Bradley and Ewing Constitutional and

15 Section 124(1) of the Constitution of Lesotho

16 Section 91(1) of the Constitution of Lesotho

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Administrative Law 17
pointed out that the concept of a Ministerial Cabinet was a creation of
politics and not law and the doctrine of collective ministerial responsibility has been a matter of
convention and practice. Justice Wallis succinctly proffered:

So long as politicians serve as ministers, they share in the collective responsibility

of all ministers in the sense that they may not publicly criticise or dissociate
themselves from government policy. The result is that, although in the course of
debate within the cabinet there will be differences of view, once government
policy has been settled all ministers are required to support it…Collective
responsibility may also extend to defending a cabinet colleague in regard to the
conduct of their department, even though each minister is individually responsible
to parliament for the affairs of their own department.

The implication of the above is that collective responsibility has other tenets aside the Prime
Minister informing his cabinet of every decision of his and seeking their advice thereon. From
the decision of the court in this case, the following tenets of collective ministerial responsibility
in Lesotho may be gleaned.

First, it is a creature of the constitution as well as a matter of conventional practices. Second, the
constitutional authority is derived from Section 91(1)18 which states that like other persons, the
Prime Minister has the authority to advise the king without a prior consultation with his
ministers. Third, the authority of the Prime Minister to act alone is not limited to Section 88(3) 19
of the Constitution.

Collective ministerial responsibility in another jurisdiction

17 For ease of reference, refer to pages 19-20 of the unreported case number 02/2015. It is a Court of Appeal
Decision C of A (CIV) 13/2/2015

18 Section 91(1) of the Constitution of Lesotho

19 Section 88(3) of the Constitution of Lesotho

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In the case of Attorney-General v. Jonathan Cape20 the Attorney-General sought restraint on the
publication of certain materials in the diary of Richard Crossman, a former cabinet minister,
submitting that the protection from disclosure of cabinet papers was based on collective
responsibility. Specifically, the Attorney General applied for an injunction to stop Jonathan Cape
Ltd and the Sunday Times publishing the diaries of the late Richard Crossman, a Cabinet
minister for Housing in the Labour Party under Harold Wilson around 1964.

The diaries recorded cabinet discussions, and advice given by or about civil servants. The
Secretary of the Cabinet heard about the upcoming publication, asked for the contents but could
not agree with the publishers about what to redact. “The Sunday Times” did in fact publish
extracts despite the objections.

The Attorney General argued that the doctrine of collective responsibility would be undermined
if confidential discussions were open to the public. The court refused the injunction. It pointed
out that there was a specific interest in maintaining the confidentiality of ministerial
communications arising from the convention of collective responsibility of Ministers of the
Crown, which is that once a policy decision has been reached by the Government it must be
supported by all ministers whether they approve of it or not unless they resign and that
convention and the free discussion between ministers may be prejudiced by “premature
disclosure” of the views of individual ministers.

Lord Widgery CJ said that: “the court must have power to deal with publication which threatens
national security”. Regarding confidence in publicly owned material the court posited that
“[T]here must, however, be a limit in time after which the confidential character of the
information, and the duty of the court to restrain publication will lapse” and “It may, of course,
be intensely difficult in a particular case, to say at what point the material loses its confidential
character, on the ground that publication will no longer undermine the doctrine of cabinet
responsibility”.

Lord Widgery LCJ also made it clear that the Attorney-General must show (a) that such
publication would be a breach of confidence; (b) that the public interest requires that the

20 Attorney-General v. Jonathan Cape 1976 QB 752

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publication be restrained, and (c) that there are no other facts of the public interest contradictory
of and more compelling than that relied upon.

Lord Widgery LCJ drummed home the point that the court, when asked to restrain such a
publication, must closely examine the extent to which relief is necessary to ensure that
restrictions are not imposed beyond the strict requirement of public need. Clearly, what this case
conveys is that the cabinet collectively takes responsibility for the conduct of its members. Thus,
the court in refusing the injunction established time-honoured doctrine of collective ministerial
responsibility.

Conclusion

It is clear from the discussion above, that the doctrine of collective ministerial responsibility is
founded on the principle that the decision of cabinet is binding on all members of cabinet. It is
also instructive to note that in the case of Lesotho like many countries that follow the
Westminster system, it is more a matter of convention than a constitutional requirement. The two
cases cited above and the references to other authorities in these cases are ample evidence to the
fact that collective ministerial responsibility tilts more towards convention than it hangs on the
strict letter of the law.

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Bibliography

Government Printer. (1993). The Constitution of Lesotho. Maseru: Government Printer.

Phillips, O.H., Jackson P. and Leopold, P. (2001). Constitutional and Administrative Law (7th
Ed). London: Sweet and Maxwell.

Smith, D. E. “Clarifying the doctrine of ministerial responsibility as it applies to the government

and parliament of Canada”. Retrieved from
http://www.cbc.ca/news2/background/groupaction/v2fullreport/CISPAA_Vol1_4.pdf.