Appeal Court suspension brews storm


. . . analysts and politicians claim wheels of justice have loosened



MASERU – Last week’s closure of the Court of Appeal due to alleged financial constraints strengthens suspicions Prime Minister Thomas Thabane is using the judiciary to fight his political battles, analysts and politicians have said.

Speaking to Public Eye the analysts and politicians noted that the current state of the judiciary should be solely blamed on Thabane’s interference in judicial affairs.

They added that after realising he could not control the President of the Court of Appeal Dr. Kananelo Mosito, whom Thabane had backed to be appointed to that office, the premier was now on a mission to frustrate Mosito “even if it means crippling the judiciary and interfering with the running of the apex court”.

They further noted that Thabane’s government had failed in its primary mandate to jealously protect the judiciary and support it financially “for the delivery of justice which should be meted equally to the rich and poor”.

Moreover, the analysts submitted that the suspension of the apex court would have a damaging effect on the economy, invariably paralyse all state organs.

Again, the suspension of the court should attract the attention of investors, donors and the international community who “will not stand by and watch as government commits daylight robbery of democracy”.

Law Society of Lesotho (LSL) in a statement regretted the move, saying: “Pursuant to section 4 of the Law Society Act 1983, the Law Society is a key role player in the administration of justice within the Kingdom. Section 4(a) of the Law Society Act provides for the law society to consider, originate and promote reforms and improvements in law; to consider proposed alteration and oppose or support the same; to assist in the administration of justice; and to effect improvements in administration or practice of law,” Vice President Advocate Matee said.

“It follows, therefore that the Law Society like many other institutions that oil the justice system within the Kingdom, is concerned by the sudden cancellation and/or postponement of the session of the apex court of this land. This has far reaching consequences, not only to the society and its members but to the entire nation.”

He added: “We wish to assure our members and the nation at large that we remain committed to ensuring that the objectives of the society are realized. For this reason, we will be meeting all relevant stakeholders responsible for the proper administration of justice.”

According to Matee, it was important to understand that “the Court of Appeal is a necessary ingredient” without which a democratic state cannot function properly.

“The society strongly believes that the Kingdom of Lesotho is a democratic state, therefore we will be appealing to the stakeholders to maintain the integrity of the Kingdom as a democratic state, ensure the smooth and uninterrupted administration of justice, independence of the judiciary, maintain and uphold the rule of law.”

Official Leader of Opposition in Parliament, Democratic Congress (DC) leader Mathibeli Mokhothu, on Wednesday noted that government had seemingly failed to execute its mandate of ensuring that the wheels of justice turned smoothly.

He noted that the decision to cancel the convening of the Court of Appeal which was scheduled for next week Monday, validated the opposition’s long held fears that Premier Thabane interfered with the administration of the judiciary and that the mess he had created had led to the breakdown of relations between him and PCA president Justice Mosito.

“The cancellation of the convening of the Court of Appeal due to alleged financial constraints only validates opposition fears that Ntate Thabane interferes with the courts of law.

“We suspect that since he does not have control over Mosito, he will do everything in his power to frustrate him, including depriving the apex court of funds so that it cannot function,” Mokhothu said.

According to the DC leader, it was strange the apex court was facing financial difficulties “hardly two weeks since parliament allocated funds to ministries and government departments”.

“If it was at the end of the financial year, it would have made sense because obviously funds would have been depleted. But this is the beginning of the financial year and it has actually been 10 days since we passed the budget. How then is it that there’s no money to fund the sitting of the Court of Appeal?” Mokhothu quipped.

The official leader of opposition hinted government may have orchestrated the cancellation of the fiasco because there were cases that the ruling party feared would hurt them politically if the apex court convened.

“I suspect that some quarters in government fear that a particular case which is political in nature could compromise them should the court of appeal convene,” Mokhothu said cheekily.

Mokhothu was apparently referring to the ABC case pending in the high court, where the party’s warring factions are wrestling for control of the party, with fears mounting that should the high court’s conclusion favour the pro-Thabane camp against a rival faction led by disputed deputy leader Prof. Nqosa Mahao, they would win it on appeal because Mahao is purportedly Mosito’s friend.

Political and economic analyst Arthur Majara said suspension of the apex court due to alleged financial constraints had far-reaching implications that were both political and economic, further cautioning government could soon face the wrath of development partners and the international community.

“This suspension of the court of appeal is going to affect the economy adversely, especially the banking industry, because it cannot function when the judicial and political systems are at a standstill,” Majara said.

“Without the Court of Appeal, the High Court, Magistrate Court and others are useless because they will not be able to put into effect their decisions because most verdicts are challenged in the apex court.

“Development partners are also going to want to move in because they cannot stand back and watch as the Lesotho government commits daylight robbery of democracy.”

Majara added Thabane was “itching to get rid of Mosito”.

“He wants to expel Mosito but cannot do in the space of less than a year because appointing one to the positions is a process that takes time as it is complicated and can’t be done by Thabane alone. So, his best bet is to frustrate the court of appeal,” Majara said.

“This therefore means the country is in a state of paralysis because everything is at a standstill. Thabane’s support base in parliament is also compromised, which means he is not comfortable enough to make decisions without them being interrogated.

“We should also understand that this issue goes beyond the ABC factions because it affects the entire functions of the state.

“Sadly, this is the first time something like this takes place. It demonstrates government’s reluctance to assist the court of appeal. It’s apparent that the withdrawal of financial support for the judiciary is intentional.”

Majara further maintained that the situation in the ABC was destabilising all state functions because “the saga is spilling into all organs of state” adding that there was no way.

“The problem here is that Thabane captured all key organs of state: parliament, judiciary and the security apparatus. Now he is stuck. It is clear that he is merely buying time by crippling the apex court. It could be a bid to buy time for the ABC faction of the State House,” Majara said.

Political scientist Dr Fako Likoti, said it was imperative to note that in any democracy there were three organs of state “these being parliament, executive and judiciary” which he said should be “functioning at all times regardless of existing financial constraints”.

He said failure by the judiciary to perform its primary mandate of delivering justice “cripples law and order”.

“But, most importantly, the judiciary must function at all times because if it does not, it cripples law and order without which a country can function. We must also always remember that this government popularised the importance of the rule of law during their election campaigns,” Likoti said.

Likoti said it was incumbent on Thabane to ensure that his government did not compromise delivery of justice because when he was campaigning for office, he popularised the importance of upholding the rule of law and democratic principles, adding it was shocking “that he is today crippling the judiciary”.

“If now they are crippling the judiciary, it means Thabane’s popularisation of upholding the rule of law was deceptive to say the least. The most important thing that people need to understand is that the executive, judiciary and parliament are the most important organs of the state. We can’t afford to cripple either one of them,” Likoti said.

“So, the fact that the Court of Appeal is not going to function because there is a claim of the lack of funding, is really unbecoming and unheard of in a democracy. You can imagine the thousands of people who are waiting to have their cases heard in the Court of Appeal.

“There are a lot of poor people who are expecting justice but are going to be denied the same justice, because government failed to fund the judiciary, which is really a shame and something that should never happen in a democracy.”

He further bashed Thabane’s government for being inept, adding it was high time that Basotho realised “that this government has reached the end of its tether” and that it could spark a war between people fighting over different issues in the courts of law.

“Our government is inept and cannot govern at all. Perhaps it is high time that Basotho realised that this government has reached the end of the road, because it cannot deliver anything, let alone justice.

“It means that we now are going to fight each other because the courts are failing to execute their mandate because there are not judges,” Likoti said.

“We are in a state of anarchy where no one will be able to get justice. There’s no law and order, the rule of law is but an illusion. You can’t shut the High Court. You can’t shut the Court of Appeal. You can’t paralyse the judiciary. This whole situation has left an indelible mark on our democracy.”

Asked what he thought of the fact that the Court of Appeal had been in a state of paralysis for almost two years from 2017, when Thabane was being blocked from installing Justice Mosito by some of Lesotho’s prominent lawyers, Likoti said just because the court had not functioned previously “does not mean we should just accept such things as normal”.

“We should not live like that. We should not accept bad things because there were some challenges in the recent past. The government is there to see to it that the state functions.

“These organs of state must function and it is the responsibility of government to see to it that it happens. Whether there are financial constraints or issues about the judges’ appointment, all boils down to being the government’s responsibility to see to it that all state organs function,” Likoti said.

“It was bad enough that we spent a good two years without a functional judiciary. The government has a mandate to ensure that things run smoothly in any democratic dispensations.”

There has been mounting speculation, that the apex court had been deprived of a budget in order not to function, due to fears that if convened the High Court would be compelled to expedite the governing All Basotho Convention (ABC) case, in which the party’s two warring camps are wrangling for the control of the party.

There are unsubstantiated reports the Court of Appeal might block decisions of the High Court in favour of a camp led by disputed Deputy-Leader Prof. Nqosa Mahao against leader and Prime Minister Thomas Thabane’s so-called State House camp.

In response, Likoti said while it was necessary for the judiciary to be seen to be independent as one of the key organs of state, people should also accept that in 2017 when Thabane came into power, he moved to make changes in the judiciary, which he described as political.

“This was particularly evident in the appointment of the President of the Court of Appeal Dr Kananelo Mosito and the removal of the substantive Chief Justice Nthomeng Majara who is on suspension and the subsequent appointment of the Acting Chief Justice ’Maseforo Mahase,” Likoti said.

“That intervention which was unwarranted has created perceptions of bias and it only for the executive to leave the courts of law alone, in order for people to have confidence in the running of the judiciary.”

Likoti added: “People will always have negative perception when they lose cases or when some lose cases. But you cannot run away from the fact that there has been political interventions in the appointment of the current PCA and ACJ. Cases against Mosito pertaining to corruption were withdrawn to enable him to occupy that office despite being declared unfit for such.”

Likoti further noted that it was time for Basotho “to think long and hard about independence of the judiciary and how it can be attained”.

“What we see happening today are the results of political intervention. Remember at one rally during his previous tenure as PM, Thabane told an ABC rally that he couldn’t afford to pay a judge as the executive, only for the same judge to rule against him. Politicians must leave the judiciary alone and refrain from interfering with its independence,” Likoti said.

Lesotho Council of Non-Governmental Organisations (LCN) Executive Director Seabata Motsamai, called the apex court debacle “pathetic” because “it tarnishes our image as a country” and adversely “affects our relations with the international community while also compromising investor confidence”.

“This is pathetic and should never be allowed to happen. It tarnishes our image. Donors and investors alike will lose their confidence in Lesotho. I wonder if the international community has already appealed to government to be careful when dealing with issues that compromise democracy and the rule of law,” Motsamai said.

“But, this also says there’s a bigger problem in the judiciary. The judiciary needs to be assisted with resources. But at the same time, it also needs to assert its independence.”

The pertinent question that government needed to answer, Motsamai said, was why it did not anticipate that the court of appeal would need funds to function and clear the backlog of cases after the court was in paralysis for almost two year since 2017 to February 2019.

“Why didn’t government anticipate that the judiciary and in particular the court of appeal would need funding in order to convene and clear the backlog of cases it was not able to deal with in the almost two years that it was in paralysis?” Motsamai quizzed.

“The wheels of justice have loosened. This is pathetic because no government has the right to deprive people of justice. Despite life’s disparities, it is only before the law that the mighty and the weak are equal. Justice is the only thing that the rich and poor are equally entitled to.”


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