Judicial independence tattered, report says

RELEBOHILE TSOAMOTSE

MASERU – A report into Lesotho’s judicial independence has painted a bleak picture on the country’s judicial appointments.

The report outlines in explicit terms that the institution appointing judges, Judicial Service Commission (JSC) is compromised.

The JSC, according to the report, lacks independence and is subject to executive control. This is brought by the fact that in its current composition, the commission is comprised of members appointed by the King acting on the advice of the Prime Minister (PM) “with the PM playing a leading role in the appointment,”

The report states that “the JSC of Lesotho is heavily composed of executive role players which hinder its independence.”

The Chief Justice, Attorney General (AG) and Chairperson of the JSC are all appointed by the King acting on the advice of the PM.

Compiled by the Southern African Development Community (SADC) Lawyer’s Association, the report continues to says that active participation by the prime minister in the appointment of officials sitting in the JSC gives the impression that there is a lack of independence and that there is executive control over the institution.

Even concerning is the fact that while the AG sits in the JSC, he is also a serving member of Council of State – an entity responsible for assisting the King in executing his executive duties and responsibilities.

The AG’s position, being an executive oriented position, is said to be jeopardizing the independence of the JSC on which it serves.

The regional body made several findings and recommendations after conducting a study on the independence of the judiciary in Lesotho.

The findings are aimed at assisting the country in addressing problems facing its judiciary as the country engages in Judicial reforms. It was officially handed to the judiciary and other stakeholders at an event at Avani Lesotho last Friday.

Key to its findings is that, removal and appointment of judges at the helm of the judiciary (the Chief Justice and the President of the Court of Appeal) negates the independence of the judiciary and has left an impression that “for one to survive in the judiciary, one must align with the government of the day.”

The report notes developments from 2013 to date within the sector, whereby the then Prime Minister Motsoahae Thabane suspended then President of the Appeal Court, the late Justice Mathealira Michael Ramolibedi and replaced him with Justice Kananelo Mosito two years later.

This incidence was followed by other removals and suspensions of holders of the position, and the SADC Lawyer’s Association says this gives the impression that “unlike the constitutionally entrenched security of tenure, the tenure of these judges were linked to the ruling government.”

The report also highlights perception by members of the public who it says believes the judiciary is polarized by politics.

In its fact finding mission, the lawyers association says there were allegations that former Acting Chief Justice, Justice ‘Maseforo Mahase, involved herself in interparty issues that were brought to court raising concerns of degrading the office of Chief Justice.

Disputes and infighting, lack of permanents appointments, engagement of foreign judges, salaries and tenure of judges and parliamentary supremacy or royal prerogative have been identified as some of the threats to the independence of the judiciary.

“There was a public dispute over the leadership of the Judiciary between the then Judge President of the Court of Appeal and the Chief Justice of the High Court. This dispute lasted from 2013 to 2014 and had a severe impact on the independence of the judiciary,” read the report in part.

The report further states that the dispute “eventually led to the Judge President of the Court of Appeal refusing to let High Court Judges sit on his bench. The rapid escalation and the public nature of this dispute led to calls for the media and the Executive to intervene, with calls to revoke Judge President’s decision.”

For that, SADC Lawyers Association says it is unfortunate that the Executive was called upon to intervene in the dispute given the sensitive balance that needed to be struck to ensure proper separation of powers and the subsequent involvement of the Executive in the internal affairs and disputes of the judiciary.

“It is a clear overlapping of powers between two branches of government that need to remain autonomous. Not only does is threaten the separation of powers and the independence of the judiciary, but it also creates a threat to the rule of law.”

On top of that, having High Court Judges as ex officio members of the Appeal Court as is the case in Lesotho has been labeled as legacy from colonialism and tainting litigants’ right to appeal against the provision that a person has the right to appeal before a different court.

“If the same judges serve on both benches it has a severe impact on impartiality and integrity of the judicial system.”

The report has recommended the establishment of a permanent Court of Appeal to remedy the situation and that a Constitutional Court be established to address other issues. It has also been said that there is need for a proper judicial funding and the properly constructed JSC has been asked to draft a financial plan for the Judiciary for the next three years with the assistance of financial specialists.

Chief Justice Sakoane Sakoane thanked the SADC association for the report and said it will go a long way in addressing challenges facing the judiciary. He said the contents of the report speak to the heart of problems facing Basotho.

For his part, Law and Justice Minister, Professor Nqosa Mahao, admitted to the executive’s neglect of its duty to assist the judiciary. He highlighted that some of the issues raised are already being attended such as capacitating the High Court with more staff including the appointment of judges some of which will sit at the new division of High Court at Tšifa-li-Mali in the Leribe district.