Opinion divided over use of foreign judges

RAY MUNGOSHI

MASERU – The latest episode in Lesotho’s inflexible squabbling exploded into open warfare again last week when soldiers facing a range of egregious charges vowed to scuttle a government plan to bring foreign judges to preside over their cases. The very public spat has again exposed gapping fissures in the local political fabric placing the ruling coalition – variously labelled the 4by4 - against an opposition grouping, the so-called “alliance of opposition parties in and outside parliament”.

While this is not without precedent in the rough-andtumble of local politics, the cause and nature of the bickering this time has aroused public interest and debate, as it is perched perilously close to the core of one of the pillars of the country’s democratic order. It is trite that modern states are delicately divided into three distinct arms – the executive, the legislature and the judiciary. This after in one of his seminal writings, The Spirit of the Laws, French social and political philosopher Charles de Montesquieu argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others.

Under Lesotho’s adversarial system of justice court cases are contests between opposing sides, compelling feuding parties to robustly present evidence and legal arguments corroborating their version of events. As such, judges have to desist from descending into the arena to guard against creating the perception of bias, so that they can provide an independent assessment of the facts. Judges decide whether the evidence is credible and which witnesses are telling the truth.

They then apply the law to these facts to determine whether a civil claim has been established on a balance of probabilities or whether there is proof beyond a reasonable doubt, in criminal cases, that the suspect is guilty. Although the government appoints and pays judges, it relinquishes control of the judiciary at the end of this appointing process.Jurists contend independence ensures judges are able to make courageous, even unpopular decisions knowing that no one – not even the Chief Justice or the prime minister can fire them or cut their salaries to suborn them.

Independence also protects judges who make controversial decisions that rub the public the wrong way. In Lesotho, this is enshrined in section 118 of the constitution and guarantees everyone accused of crimes that their case will be heard by an independent judge. In sub section (2) and (3) the Constitution reads: “The courts shall, in the performance of their functions under this Constitution or any other law, be independent and free from interference and subject only to this Constitution and any other law. The Government shall accord such assistance as the courts mayrequire to enable them to protect their independence, dignity and effectiveness, subject to this Constitution and any other law.”

Independence is therefore vital to engendering public confidence in the fairness and objectivity of the justice system. This is why this concept is touted as the cornerstone for judicial impartiality, a view drummed up by Lord Mansfield during the trial of the rabblerousing John Wilkes in 1768, when he underlined the needfor judges to resist the public clamour.

“The constitution does not allow the State to reverse our judgements - God forbid if it should. We must not regard political consequences however formidable they might be. If we did, there will be a certain consequence. We are bound to say, let justice be done even though the heavens fall. We are to say what we think the law to be. If we do not speak our real opinions, we prevaricate with God and our consciences.” Also, United States jurist Alexander Hamilton who described the judiciary “as the bulwark of a limited Constitution against legislative encroachments”, noted that to act as “an intermediate body between the people and the legislature in order ... to keep the latter within the limits assigned to their authority… the complete independence of the courts of justice is ... essential.”

This notwithstanding, the local judiciary has since the political upheavals of 1994 come under intense scrutiny for making what some pundits term controversial decisions, especially in disputes related to elections. In a 2009 opinion, Transformation Resource Centre (TRC) director Tsikoane Peshoane proposed that the judiciary must be subjected to public scrutiny.

“We have seen that judgments of the High Court and the Court of Appeal have not been effective in maintaining peace and stability particularly after elections in Lesotho. On the contrary, the decisions of the High Court have stoked political confl ict. The decisions of the courts in electoral disputes have cast a dark shadow on the judiciary and its role in our democracy,” Peshoane wrote, commenting on the judiciary’s “controversial decisions” after disputed elections in 2007. But this is not to suggest that the judiciary has always bungled cases.

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