As public participation approved in appointing judge
MASERU – Local rights group Transformation Resource Centre (TRC) has given a round of applause to the Judicial Service Commission (JSC) for the changes it has announced to the process of appointing High Court judges. Most notably, TRC is pleased that JSC has invited members of public to participate in the process by nominating “persons through filling prescribed forms,” it said in a statement yesterday.
Incredibly the JSC for the first time has provided a platform for direct citizen participation in the conduct of public affairs – in this case, appointment of judges who are public officers appointed to decide cases in courts of law with not only powers to decide cases before them but set precedents,” it said.
TRC also said it was worth noting that public participation in the conduct of public affairs had been its “far cry in the wilderness” over the years. “TRC was so adamant that it resorted to the last tactic in the book – litigation to enforce citizens’ right to participate in public affairs,” it said.
It further indicated that it has always been of an opinion that public participation rights played a crucial role in the promotion of democratic governance, the rule of law, social inclusion and economic development, as well as in the advancement of all human rights.
“First, TRC fought for public participation in the parliamentary proceedings leading to the establishment of the Human Rights Commission; and secondly, participation through observation in the appointment of the commissioners of the Independent Electoral Commission (IEC).
“TRC also fought hard urging National Reforms Authority (NRA) to be transparent and open in the selection and appointment of the chairperson. It is an honour for the JSC to have heard TRC even before elected representatives who are accountable to the citizens,” said TRC.
While TRC applauded the JSC, it however said it was not sufficient to leave such important democratic practices – appointment of high court judges – to the discretion of the JSC and its chairperson at the time.
Parliament and the Executive, it said, should do their part through the enactment of laws and regulations to make it mandatory to have a transparent and open process not only in the selection of judges but all constitutional public offices.
These include commissioners of IEC, Human Rights Commission, and NRA, Attorney General, Director of Public Prosecutions and Auditor General among many others.
“Making constitutional office bearers selections with openness and transparency allows principled public debate about the suitability of the candidates. Transparency is often manifested by publicly advertising vacancies, disseminating the criteria for selection, and conducting public interviews,” TRC said.
The process of appointment of high court judges has brought judicial independence into sharp focus. The principle of judicial independence is fundamental to democracy. Judicial independence is a requirement by the constitution, not in the personal interests of the judiciary, but in the public interest, for without that protection judges many not be, or seen by the public to be, able to perform their duties without fear of favour.
The constitution under Section 118 Subsection 2 states that: “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.”
Subsection 3 states further that government “shall accord such assistance as the courts may require enabling them to protect their independence, dignity and effectiveness, subject to this Constitution and any other law”.
Last year Law and Justice Minister, Professor Nqosa Mahao, won constitutional application to stop former Acting Chief Justice ‘Maseforo Mahase and Attorney General Advocate Haae Phoofolo from recommending the appointment of five new High Court judges without the active participation and input of fellow members of the JSC.
Mahase and Phoofolo had met on August 20, 2020, in their capacity as JSC members and recommended that His Majesty King Letsie III appoints Deputy Attorney General Tsebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and ‘Maliepollo Makhetha as High Court judges.
But the five were not appointed with media reports that King Letsie III refused to appoint them on the grounds that Mahase and Phoofolo could not sit on their own and make recommendations without the input of other JSC members.
The White Horse Party then filed a constitutional application to force King to appoint the five judges as per Mahase and Phoofolo’s recommendations. Mahao then filed a counter-application for the nullification of Mahase and Phoofolo’s meeting and their subsequent recommendations. White Horse and Mahao’s applications were consolidated and heard as one case.
The court then dismissed White Horse application on the grounds that Mahase and Phoofolo did not constitute the JSC quorum. It said for the JSC to make valid decisions, it should be properly constituted with a quorum of its members.
“So, for a decision to qualify as a valid decision of the commission it must have the agreement or approval of the majority of the four members. This applies to all decisions of the JSC meetings which were forwarded to His Majesty,” said the constitutional court.