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Khathang Tema Baitsokoli and Another v Maseru City Council and Others.

Country/Territory
Lesotho
Type of court
National - higher court
Date
Jan 26, 2005
Source
UNEP, InforMEA
Court name
High Court of Lesotho
Judge
MOLAI, B.K.
PEETE, S.N.
NOMNGCONGO., T.
Reference number
CONST/C/1/2004
Language
English
Subject
Legal questions
Keyword
Constitutional law Vending
Abstract
The Lesotho 1993 Constitution contains social and economic rights under Chapter III. These rights are however not justiciable in court and are principles of state policy. The issue of “right to life” and “right to a livelihood” came up for determination by the High Court in the Baitsokoli (street-vendors) case in which the applicant street vendors sought relief against a municipality eviction order contending that their “right to life” – guaranteed under section 5 of the Constitution of Lesotho – was being violated in that the eviction from the street pavements where they plyed their wares endangered their means of livelihood hence their right to life. The High Court sitting as a constitutional court held that “the right of life” guaranteed under section 5 of the Constitution of Lesotho does not include a socio-economic right like “livelihood”. “Right to life” was limited to the physical (biological) existence. The Court also considered the activistic approach adopted by the courts in India which in principle hold that right to life is hollow and meaningless without amenities of life like food, medicine water, housing, work opportunities etc. The Court held that the scope right to life being the most important and precious human right as guaranteed under section 5 of the Constitution of Lesotho 1993 is limited to physical biological existence of people as “homo sapiens” and should not, unless circumstances warrant, be extended to include right to livelihood. The right (opportunity) to earn a livelihood under the Lesotho Constitution should be defined purposefully in order that it can have a true meaning without overlapping into section 5 right to life; the Government (state) has a constitutional duty and international obligation to actively promote the socio-economic rights of the Basotho. The applicants have no constitutional right to trade along Kingsway without licence or permit and their removal therefrom does not violate section 5 (right to life) of the Constitution. Decision to remove them must be fairly and reasonably reached with all the empathy deserved.
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