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Moshoeshoe v. DPP: A Missed Opportunity for Persons with Intellectual and Psychosocial Disabilities in Lesotho?


In 2017, the Constitutional Division of the High Court of Lesotho delivered a landmark judgment in Moshoeshoe v. Director of Public Prosecutions. The court ruled that section 219 of the Criminal Procedure and Evidence Act, which effectively declared persons with intellectual and psychosocial disabilities incompetent to testify in criminal courts, was inconsistent with the right to equality before the law and the right to freedom from discrimination enshrined in the Lesotho Constitution. Consequently, the provision was declared unconstitutional. Although the court arrived at a welcome and correct decision, it missed an opportunity to address the seminal and often contentious rights to legal capacity and access to justice that are inextricably linked to testimonial competence. The court focused on the undesirable outdated and derogatory language used in section 219 to the exclusion of these rights. The court therefore missed the golden opportunity presented by Moshoeshoe to adequately address the rights to legal capacity and access to justice of persons with intellectual and psychosocial disabilities in Lesotho. Using the social model of disability as a conceptual framework, this Article examines the nexus between testimonial competence, legal capacity, and access to justice, which the court neglected to consider in its judgment.