Retired Judge Peete speaks on eventful journey on the bench

I always did my best and feared no one

 Ancient Greek philosopher Socrates described judges as bound to hear courteously, to answer wisely, to consider soberly, and to decide impartially. A judge is accorded great respect by the state as well as by its citizens. He is not only permitted to assert his freedom and impartiality but is also expected to use all his skills to protect the rights of the individual against arbitrariness. In the execution of his functions, a judge has to exercise patience and alertness so that he can hear all the arguments of the contending parties to a dispute and arrive at a wise decision.

A judge of the High Court of Lesotho, JUSTICE SEMAPO PEETE (SP) has travelled this road and Public Eye reporter RELEBOHILE TSOAMOTSE (PE) spoke to him in the first interview the judge has had after he retired from the bench.

 PE: You have retired as a judge after serving for a considerable number of years on the bench, what are you currently doing?

SP: I retired on July 3, 2020, having been on the High Court bench for 23 years. I am now a Special Judicial Advisor at the National Reforms Authority (NRA) under the Justice Sector until September 2021. A challenging exercise indeed but I regard it as a national service and contribution to the new judiciary of Lesotho.

PE: How would you describe your time as a judge?

SP: My time as the judge of the High Court was exhilarating, a challenging experience, very demanding, hard work, sacrifices, integrity; judgment writing always a pleasure to me in my court proceedings, I required decorum, etiquette and brilliant advocacy. I enjoyed my 23 years and the humbling respect many people gave to me. They continue to call me.

PE: Do you have any regrets?

SP: I have handled sad and cruel cases like the murder of the then Deputy Prime Minister Selometsi Baholo by some rogue soldiers; the Pholoana Adam Lekhoaba citizensip case; the ‘Khathang Tema Baitšokoli’ (right to life), the 1/3 women representation in electoral case; the Rastafarians’ right to smoke ganja/marijuana, right to hold marches; the Monn’a Thapo murder case and the divorces and military arrests which all demanded deep introspection and impartiality for judicial sense. I nearly sentenced Monn’a Thapo to death (he pleaded extreme intoxication by the whisky he had consumed).

I was never anybody’s judge or a controlled robot. Judicial independence is an important aspect of democratic governance, rule of law and constitutionalism and protection of human rights and freedoms – impartiality and insulation of undue influence.

I always loved our lawyers in their best regalia, punctuality, legal jargons seasoned with Latin phrases, good pleadings, etiquette and decorum. I always liked a bit of laughter in court to reduce tensions and later in the evening go window shopping at the Pioneer Mall and meet people.

I regret any unfortunate mistakes I made or wrong judgements I made. Judges are human. I always did my best and feared no one. My judicial oath led my conscience and judgment writing – not to placate or vex anyone.

My few regrets are totally overshadowed by my great moments in the High Court and on the Court of Appeal. One time I made a dissenting decision in the Lekhoaba case. My dissention was confirmed by the Court of Appeal. It was a case ex lege forfeiture of Lesotho citizenship; I am happy that dual citizenship law is in the offing because of its necessity in a global world of today.

I repeat, judgeship is no bed of roses, there are thorns and it is sometimes a thankless job; from the victorious litigant heaping praises on the judge while the unsuccessful cry foul and label judges corrupt. The judiciary in Lesotho is not respected like in other African states, with incentives, it is expected to upgrade own performances.

PE: Oftentimes we speak of the independence of the judiciary, do you believe our courts are independent?

SP: Many jurists have penned treaties and monographs on judicial independence which is often misunderstood as to its true meaning, parameters and scope. It must always be looked at and conceptualised from the historical background and political landscape of each country.

Independence of the judiciary which must be strived for and respected is not an absolute concept and must complemented with judicial accountability. My personal belief is not material; what is important is whether the two other organs of state – the executive and the legislature – have a mindset that recognises the universality of the principle of judicial independence and whether there’s no undue influence or interference or defying judicial authority in a democratic scenario where the constitution is a supreme rule of law and legality and the Bill of Rights are respected by all regardless of official high status or political or financial muscle.

I believe that all three organs of state must have clear Codes of Ethics to encourage true mutual respect and cooperation among each other, all in service of the people. None of these organs are supreme, only the constitution of Lesotho is supreme. The recent Zondo-Zuma case is a chilling example of judicial independence, rule of law against any nefarious immunity over law and constitutionalism in any democratic state.

PE: Just recently, the Chief Justice tabulated a number of challenges faced by the judiciary, do you think government is doing enough to capacitate the courts?

SP: After my 23 years on the bench, I do not want to be crucified or to be seen to be swimming upstream a swollen Mohokare or Senqu River but I must fearlessly advise that all people who hold legislative executive and judicial high offices in Lesotho today must comprehend the national sacred trust, confidence, mandate and authority of the Basotho people.

The Honorable Chief Justice spoke fearlessly frankly and hit the nail on the head. I applaud his frankness in tabulating the challenges facing the judiciary in Lesotho. The under resourcing of the judiciary has perennial and thorny issues, one well sensitised by Chief Justice at the Convention Centre.

I do not wish to open festering wounds but I would relish healing and national unity. I say no more. I am not a coward but if there is a bull I can fearlessly catch its horns.

PE: Are our courts accessible and do our people have confidence in them from where you stand?

SP: Access to courts is a multi-faced phenomenon that depends, among other things, constitutional provision, mutual respect and cooperation amongst all institutions of state, resources as well as access and affordability of justice to all grassroots of our people. Judicial services for expedition need bold, decentralised court structures strategically located throughout Lesotho. Party politics in Lesotho are touchy, but the supreme will of Basotho must be respected by all and everyone regardless of their party political allegiances – without them, true justice can prevail.

PE: Discussions about the composition and authority of the courts have garnered great attention in recent times, debates such as selection and term limits for magistrates and justices. What are your views on these issues?

SP: I listened to our Chief Justice Sakoane with great earnest and admiration, a direct frank disclosure and tabulation of the challenges of under resources of the courts. These concerns are sub judice in the reforms.

Speaking for myself, Lesotho today needs well over 30 judges, more High Courts and more magistrates. Every government has a sacred and constitutional duty to capacitate courts, not for their luxury but for effective discharge of their functions to grassroots of society.

 PE: Personally, have you considered significant judicial reforms in light of the ongoing national reforms process and can you discuss their relative merits?

SP: Because of the acutely archaic colonial structures that are highly centralised, our courts are totally not accessible or affordable to achieve justice. It is a bitter truth which even a herd boy can applaud from a mountainside.

PE: How best can the country eliminate judicial and legislative roadblocks that curtail access to justice for society’s most vulnerable and rig the system in favour of the wealthy and powerful?

SP: Lack of access to justice negatively erodes confidence and trust, self-help results and refusal or reluctance to assist police investigation. Everyone cannot dispute that an overloaded bus with an unserviced engine will overturn or burst its wheels or fail to go an uphill to reverse into a donga killing all on board.

PE: Let’s talk of gender diversity on the bench, how do we fare?

SP: There is need for more advances in the judiciary. We have busy matrimonial, domestic matters on our rolls. We have lady advocates and attorneys. Secretly, I went on early retirement to allow new blood and gender based cadre of new judiciary.

PE: Reforms to fix the broken judicial system can often be rebuked as attempts to politicise the courts. Our history has taught much on that one; how can we avoid turning the judiciary into a partisan tool to achieve particular ends undermining the proper role of the courts?

SP: The judicial reforms now in process are or were long overdue, since 1966. They must be courageous, unrelenting and futuristic for our future generations. I will not get into detail, the project is sub judice and confidential but they are devoid of self-interest. However, to respond to your question, they are not meant to mend a broken justice machine but intend to have new justice machinery. We are at the cross roads and chivalrous decisions and drastic changes must be made only for the goodness and common will of Basotho.

They require statesmanship and a patriotic approach so politicising courts can never bear or serve national interest. At best, it can be sectoral, temporary and personal. Mutual respect and confidence should characterise the relationship between organs of state.

Politicians must cultivate a culture of trust and respect with attenuating or restricting their freedom of speech which is not an absolute right. It is a right that should be exercised with respect as per Section 14 2 (b) of the constitution.

PE: While the administration of justice is an exercise by the courts, institutions such as police and the public prosecution work together in this regard. In your experience how is the working relationship between these three institutions?

SP: Police and prosecutors are law enforcement agencies. Police detect and investigate crime, in this regard, close cooperation and liaison is imperative between police and prosecutors who today are legally trained and must work hand in glove and give legal advice sufficiently, on evidence credibility and admissibility.

Prosecution should be impartial; they are officers of the courts to which they owe honesty and no material evidence should be tampered with or concealed. Prosecution or investigations must never be persecutory or selective or be robot controlled by political moguls.

PE: There are incidences where incomplete cases (pending investigations) are brought before courts, is this permissible and what effect does it have on the administration of justice?

SP: In all criminal cases protection bears onus to prove the guilt of an accused beyond a reasonable doubt. Accused is presumed innocent until proven guilty-section 12 (2) (a).

The prosecutor exercises a judicial function. Limping cases or fishing expeditions must never be enrolled on criminal court rolled. All cases must pass the test of prima facie and “prosecutability”. The court is entitled to acquit and discharge the accused at the close of prosecution case as no case to answer! The prosecution is exercised on behalf of the King and the people of Lesotho and not on behalf of the government which should restrain influence on the course of prosecution.

PE: What are your views on the country’s engagement of foreign judges to sit on the high court bench, as well as the Apex Court?

SP: Lesotho is an independent state with a small judiciary and lives in a global village and our jurisprudence has international and universal principle. Each case coming before the court has its own particular merits and exigencies – these may be political, military or highly complex. Engagement of foreign judges should be necessitated by unique circumstances. No insinuations of cowardice should be made when such engagements are made.

In the old South, three or five judges would sit in a complex or unique criminal cases. The truth is that the political climate today in Lesotho is dangerously volatile, explosively vitriolic and justice may better be served by engaging judges from outside the country.

Grave security issues cannot be ignored and, in my view, it would be in order for SADC or AU to establish a pool of experienced retired judges to be selected and called to sit when so required in member states. What is important is impartiality and a transparent manner of their ad hoc appointment insulated against any undue influences.

PE: What has the committee tasked with these reforms been able to do thus far?

SP: The matters on the agenda before the justice/judicial committee on reforms are sub-judice. People will have to be patient to find out but I can assure you of a fine product.

PE: Were you to single-handedly reform the institution, which would be your areas of focus and why?

SP: Not only me, our Honourable Chief Justice and his judges all wish for a sufficiently resourced judiciary free of all forms of undue influences or disrespect to their decisions. More judges, more magistrates, more courtrooms with adequate resources, meritorious selection and appointment process. Even the judiciary should not do it alone and relevant stakeholders must be invited on board.

There is also need for a broad based Judicial Service Commission and the need for a decentralized court structure cannot be under emphasized. Further, a judiciary that is responsive and expeditious and user friendly. There is also need for a dedicated training in new and modern court craft and court techniques. I once presided as a judge over a murder case from the ’Manthabiseng Convention Centre where I communicated virtually (via skype) with a witness in Germany.

All these are necessary because Lesotho is an independent state and our destiny in all spheres; national, political, judicial, economic and socially, is tied to the global village. The general populace want a new-look judiciary that meet their needs.

In Lesotho, social media loudly spell out their grave concerns about delivery of justice – some people speak in very derogatory and provocative language, to them I say “e khoptjoa le maoto mane, ho joang ha ale mabeli?” A responsible social media uses respectable language with civility and with due respect to other people’s rights. I do not take kindly to insolence and abusive language.

PE: Lastly, what is your message to colleagues or stakeholders in the judiciary as you retire?

SP: I should take this rare opportunity to wish our new Chief Justice a judicial good luck, Bon vVoyage, god speed and strength to lead a new judiciary as restructured into better pastures. If they did it…why can’t he do it? God’s blessing and camaraderie to all my colleagues.

A judiciary Basotho want, a judiciary with a new face with a new look, a judiciary that administers justice to all persons expeditiously, impartially without fear, favor or bias. Judges should daily polish new techniques and court craft of modern time. I implore our young advocates to sharpen and specialize their skills and perfect their advocacy. They are judges of the future. I would also like to thank His Majesty King Letsie III for having bestowed on me judgeship for 23 years to adorn the bench. I would do it again and even with better “boqhetseke” and style.