MASERU – It is official: The judiciary is at a crossroads.
The third arm of the pillars that underpin the state, which is crucially charged with protecting the constitution and adjudicating disputes but has been hurtling towards the brink for a while now, has tipped over the cliff.
This after Acting Chief Justice ’Maseforo Mahase recently mounted a withering attack on the President of the Court of Appeal, Dr Kananelo Mosito, re-igniting debate on which court is superior but, importantly, how the jousting impacts the delivery of justice and democracy.
The very public spat which some observers have traced back to the start of the fight for power in the All Basotho Convention (ABC) appears headed for the gutter unless a ceasefire is secured immediately.
But how did the judiciary – which ideally must uphold peace, order and good government, to which citizens look to uphold their rights and governments look to interpret laws – arrive at these crossroads?
While national focus was on Justice Mahase’s unrestrained assault on Justice Mosito, sharp observers hinted the apex court president fired the first broadside when he counselled judicial officials on etiquette and ethics.
Opening the recent session of the Appeal Court, Justice Mosito reminded judicial officers the integrity of the judiciary is tightly bound with the calibre of its judges.
Judges’ philosophies, styles, integrity and efficiency, as well as how they administer justice, was critical to the promotion of good governance and constitutionalism, he was quoted as having said.
Because the judiciary sat at the heart of the democratic order, as it had the constitutional authority to strike down Acts of parliament and check governmental excesses, Justice Mosito said, it was crucial that it was above reproach.
In what analysts believe was criticism directed at Justice Mahase, Justice Mosito – who also teaches law at the National University of Lesotho (NUL) – warned judges not to pander to the whims of the executive.
A suborned judiciary, he said, was doomed to fail.
Justice Mahase’s detractors have accused her of bias towards Prime Minister Tom Thabane in his fierce legal fight for the heart and soul of his ABC party with law professor Nqosa Mahao.
Mahao, who was chosen deputy ABC leader in February, has himself branded Mahase’s judgment nullifying his election “unethical” and “concocted”.
This was after Mahase agreed with Motseki Lefela and two others that the elective conference at which Mahao was elected was a nullity at law because the ABC constitution did not provide for it.
The triumvirate’s case closely mirrored one instituted by the ABC’s Habofanoe Lehana, Mohapi Mohapinyane and Keketso Sello, in February which was repeatedly postponed for one reason or another.
Mahao said the court’s decision was “fraudulent and politically motivated” as Justice Mahase had issued a default judgment without cross-checking whether interested parties in the matter had been served.
“What do you want me to say about a fraudulent judgment? It has been concocted. It is a conspiracy between unethical politicians, lawyers and a judge,” Mahao said.
Justice Mahase put the first case on ice only to issue a judgment on a newer case mounted on the similar facts “without first confirming whether interested parties in the matter had been served”.
“It raises fundamental questions about this particular judge being a judge. This judge is sitting on a case and deliberately drags her feet instead of dealing with it,” Mahao said.
“But 24 hours later she rushes to make an ex-parte judgment knowing pretty well that there are interested parties in the matter who have not been served. It’s unethical and has never happened since Lesotho’s independence.”
Mahao added that it was tragic that Lesotho’s judiciary had sunk to its lowest level “since before independence” by becoming “stooges of a desperate politician in office”.
“As a country we have sunk to the lowest level since before independence, of being stooges of desperate politicians in office who have been rejected by their party as the majority no longer want them,” Mahao said.
“They have now resorted to Machiavellian methods of taking control by hook or crook, tainting the judiciary in the process.”
Justice Mahase pushed back against this barrage of criticism, aiming her vitriol at Justice Mosito.
She cast doubt over Justice Mosito’s integrity suggesting the University of Cape Town (UCT) trained jurist and his ad hoc court were interfering with the administration of justice in the lower court, allowing impunity and the wanton breaking of High Court rules.
In a scathing letter, the Acting Chief Justice came short of accusing Justice Mosito of unethical conduct, charging he should have recused himself from hearing the ABC cases.
“…Your Lordship, and with the greatest respect; in the said ABC matter…you presided over this matter despite the notoriously well-known fact that you are comprised in the following way.
“You, Professor Mahao, Adv. Nkoya Thabane and Adv. Matee are all employees at the National University of Lesotho, and that in fact, Professor Mahao who is one of the litigants in the Koro-Koro and ABC matters respectively is your ‘Boss’ or your employer for want of a better word.
“Do you not feel compromised or somewhat conflicted in presiding over matters in which they are all directly involved?”
In a terse and somewhat patronising reply last week, Justice Mosito told Justice Mahase not only had she failed to correctly address him in his capacity as President of the Court of Appeal (addressing him instead as Judge President), but she had also breached protocol by directly writing to him.
“Professionally, Judges speak through judgments and provide their reasons therein. They don’t explain their decisions through letters.”
The retort from Mahase was swift and equally cynical: “I assure you, your Lordship ‘The president of the Court of Appeal’ that from now onwards, I will not inadvertently refer to you as I have now done.”
Adding: “I only wish to point out that as to the professionalism you refer to; I could not speak to you through any judgment because, in essence, I wrote to you the letter in question not as a Judge sitting on the bench in any litigation, but I wrote it as Acting Chief Justice and in my administrative capacity as head of the Judiciary in Lesotho.”
The widening exchange of slurs is similar to the feud between former Chief Justice, Justice Mahapela Lehohla, and former President of the Court of Appeal Justice Michael Ramodibedi, over which of them was the head of the judiciary.
The re-emergence of another quarrel albeit with a different cast, is gobsmacking.
This is accentuated by the fact that at least two forensic studies – the 2013 International Commission of Jurists (ICJ) fact finding mission and SADC’s Pumaphi Commission – have both identified and pinpointed the cause of the dispute.
The ICJ mission noted that while the Constitution outlines the powers and functions of the Chief Justice and the President of the apex court, it does not explicitly state which is the head of the judiciary.
“This lack of clarity has resulted in conflicting claims to judicial leadership by the individuals occupying the offices of the Chief Justice and the President of the Court of Appeal.
“While under the Constitution the President of the Court of Appeal presides at the apex court and does not have any administrative powers or other functions beyond those associated with the functioning of the appeal court, and the Chief Justice presides in a lower court (the High Court) but has a number of administrative powers and functions beyond those associated with the functioning of the High Court, the Constitution does not explicitly say who between them is the head of the judiciary.”
To cure this malady, the ICJ recommended among others that:
- The Constitution should be amended to address expressly the question of the head of the judicial branch of government;
- The Constitution be amended to specify that head of the judiciary bears the title Chief Justice;
- The Constitution be amended to specify that the head of the judicial branch (titled the Chief Justice) must preside at the apex court;
- The Constitution be amended to specify that the head of the High Court should bear the title President of the High Court;
- Consideration should be given to restructuring the Judicial Service Commission so as to ensure that the major stakeholders in the justice system are represented in it.
These recommendations have been kept in cold storage for years now while the judiciary self-destructs.
This is despite rights bodies including the Law Society of Lesotho (LS), Transformation Resource Centre (TRC) and the Development Peace for Education (DPE) taking turns to express disquiet over the state of the judiciary.
Their concerns are predicated on the existential threat this discord poses to the administration of justice and Lesotho’s shaky democratic order.
TRC director Tsikoane Peshoane has blamed the crisis on the manner in which chief justices and presidents of court of appeal are appointed and removed from office.
He argued the process was flawed as there was no robust test to check the “competencies of appointed judges as result some of them could easily become political proxies of the prime minister who is the appointing authority”.
“For instance, the Acting Chief Justice (ACJ) has been embroiled in controversy through her judgments which always favoured the ruling ABC which however were always overturned by the Court of Appeal which has foreign judges. This consistent overturning of the Acting Chief Justice’s judgments by the Appeal Court raises serious concerns.
“Most recently a shocking judgment has been delivered which nullified the ABC executive committee elections yet the same judge had refused to hand down judgment in four months in a similar case claiming protesters had insulted her. The Acting Chief Justice has since been labelled an ABC ally allegedly supporting the Prime Minister’s camp, whereas the truth or otherwise of this stance is unknown to us…,” Peshoane said last week.
Until recently, he added, the Appeal of Court had failed to sit because it lacked financial resources hence “allowing the High Court through the Acting Chief Justice to go on unchecked through questionable judgments”.
Advocate Tekane Maqakachane of the Law Society wants an immediate cessation of hostilities between the bickering pair, saying they ought to co-exist to foster the interests of justice.
Maqakachane believes the judges should mutually defer to each other.
Justice Mahase was obliged to concede authority to Justice Mosito where matters of law are concerned, while Justice Mosito should desist from “micro-managing” the High Court and “bow” to the Acting Chief Justice, administratively.
This formula, he reckons, would help neuter tensions engulfing the two centres of power in the judiciary, and end the damaging civil war.
“Although it is an elementary principle that owing to hierarchy of our courts’ system and the hallowed doctrine of precedent an order of the Court of Appeal – whether correct or wrong – binds the High Court, today we witness with great dismay, the total disregard of this principle.
“The fact of the High Court issuing…(an order)… that is inconsistent with the decision and order of the Court of Appeal is a fertile breeding ground for far-reaching and dire consequences for both the judiciary as an institution and to the consumers of legal services,” he said.
Also, Maqachane believes a durable solution to the squabbling lies in reviving “rotten” democratic institutions that have become cesspits of corruption and a drawback to enhancing the rule of law.
It was common cause that most state agencies were packed with “weaklings” and not “men of character, men who cannot be bought or sold”.
Because of the corruption and incompetence hamstringing these institutions, matters that ideally should be resolved administratively spill into the courts, infecting the judiciary as well.
On the angry communication between Justice Mahase and Justice Mosito, Maqakachane, noted: “Regardless of the merits or demerits of the substance and subject-matters of the communication between the honourable Acting Chief Justice and the President of the Court of Appeal, the mere fact of the existence of this kind of communication does not augur well with the proper administration of justice as it may result in bringing the administration of justice into disrepute.”
He called upon judges to “uphold the oath of office and to administer justice without fear, favour or prejudice in the interest of proper administration of justice and the rule of law”.
“The legitimacy of our courts in based principally on the continued trust which our people hold towards the courts. Without legitimacy, there is no respect to the courts; without respect, the rule of law is threatened; and without the rule of law, anarchy reigns supreme.”
Some observers are, however, hopeful ongoing SADC prescribed national reforms aimed at revamping the security sector, public service, the constitution and judiciary hold the key to curing the strife afflicting the judiciary.
Law expert Professor Hoolo ’Nyane suggested the entire High Court bench should be dismantled to remove pervasive perceptions of polarisation.
Dismantling the entire bench, he said, would help to regain the public’s confidence because at the moment almost all the judges need to be screened so that those who are clean can regain their positions.
‘Nyane said he believed judges should be professional and ethical in their course of duty.
The current state of affairs, he said, is even more embarrassing because even the leaders of the courts themselves are fighting.
“This is even more embarrassing when leaders in the courts themselves are not spared, so you can just imagine, what more about the judges!”