THE judiciary is experiencing serious crisis and it could soon collapse unless reforms are undertaken to curtail the excessive powers of the executive to interfere with the independence of the judiciary.
The warning was delivered by some senior legal practitioners who included the president of the Law Society of Lesotho, Tekane Maqakachane and National University of Lesotho law lecturer, Hoolo Nyane.
They said this during the Friday discussion which was held at the Transformation of Resource Centre (TRC) in Maseru under the topic: ‘the crises of executive based judiciary and institutional fatigue in Lesotho: Reflections on the causes and remedies’.
They said Lesotho urgently needs a new judicial model which would limit the powers of the executive who, ever since the dawn of coalition governments in 2012, have been hiring and firing senior judicial officers. They cited the likes of former Court of Appeal presidents, Justices Michael Ramodibedi and Kananelo Mosito as well as Chief Justice Nthomeng Majara as victims of the ‘excessive powers’ of the executive.
Justices Ramodibedi and Mosito were impeached in 2013 and 2016 respectively while Prime Minister Thomas Thabane has announced his intention to have Justice Majara impeached over misconduct charges.
Dr ‘Nyane argued that constitutional reforms have become more urgent than security sector reforms to save the administration of justice from total collapse.
“Lesotho’s judicial model is based on the British model which has a weak separation of powers and a strong executive hand in appointing senior courts managers,” Dr ‘Nyane said.
“The prime minister has exclusive powers to appoint the Chief Justice and Court of Appeal president and yet the constitution does not have clear procedures for their appointments. This means the prime minister’s powers are almost unlimited. It is not also clear as to which offence constitutes an impeachment offence.
The current judicial model is showing signs of fatigue and the current crisis can largely attributed to the poor relations between executive and judiciary.
“This calls for a new model which will have clear rules on appointment, conduct, removal and structural administration. There should be a clear model which limits the executive’s powers as the current model is outdated.”
Dr ‘Nyane also bemoaned the phenomenon of expatriate judges for high profile cases. He said there was no system justifying their appointment and he felt they could be compromised by the fear of ruling against the executive which brought them to Lesotho.
For his part, Adv Maqakachane said reforms were needed to deal with the status quo where he alleged that judges and lawyers did not serve the public interest.
“Prior to colonisation we had a judiciary made up of chiefs and community leaders who made judgements on the basis of the public concerns. The colonialists introduced their own laws which favoured the rich and we should have decolonised these when we became independent in 1966.
“We need a model which where a lawyer will meet the society and understand its concerns. We have judges who are concerned about what they will gain. They need to think more about the people than themselves in the administration of justice,” Adv Maqakachane said.
However, Advocate ‘Mole Khumalo, the principal secretary in the ministry of law and constitutional affairs disputed claims that that the government exercised undue interference in the affairs of the judiciary.
“The government does not interfere in the daily operations of the judiciary therefore we cannot say it is not independent form government,” Adv Khumalo said.
He also called for review of the judges’ contracts, saying the current situation in which they were allowed to remain in office until they retired at 75 led to fatigue and compromised service delivery.
He said they should be given three year contracts that were renewable on the basis of good performance.
“Judges’ contracts are for a lifetime as they can hold onto their positions until they retire at 75. I believe their work effort would be much greater if they were given three year contracts that are renewable because the lifetime contracts lead to fatigue.
“The commission which monitors the judges is also made up of five people who are the attorney general, chief justice, civilian and two practising judges. These people have other commitments which is why the commission needs to be capacitated. We also need a body which will deal with judges who take long to give judgements,” he said.
Lesotho has a huge backlog which is said by some legal officials to be in the region of more than 4000 cases.