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‘PM wields too much power on hiring judges’

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Caswell Tlali

MASERU — The Prime Minister has too much power on the appointment of judges which limits the independence of the judiciary, according to a recent study. The report, financed by the African Governance Monitoring and Advocacy Project (AfriMAP) and Open Society Initiative for Southern Africa (Osisa), was released in Maseru on Wednesday.

The study was done by a local researcher, ’Mamosebi Pholo, who is the managing director of Pholo and Partners Consultants. Speaking at the launch of the report, Pholo said members of the Judicial Service Commission (JSC) are appointed by the Prime Minister, which puts its independence in question.
The JSC is the body that is vested with the exclusive constitutional mandate to recommend the appointment of judicial officers like judges.

It is composed of the Chief Justice, Attorney General, chairperson of the Public Service Commission and a retired judge, all who are appointed by the King at the advice of the Prime Minister. “This limits the independence of the judicial appointment process,” Pholo said. She said the JSC should be expanded to include non-state stakeholders such as representatives from practising lawyers, the Law Society of Lesotho and the Lesotho Council of NGOs.

She also bemoaned the section of the constitution that provides that the Prime Minister can appoint a tribunal that can recommend the removal of the Chief Justice to the King. In her report she says empowering the Prime Minister to influence the removal of the Chief Justice “in this manner represents executive interference with the judiciary”.

“This can be avoided by amending the Constitution to provide for the removal of the Chief Justice to be initiated by a more independent, transparent and representative body such as the National Assembly,” she writes. “The law should further require that the process be consistent with the principles of natural justice.”
The report comes at a time when Lesotho’s judiciary is in crisis after Prime Minister Thomas Thabane told Court of Appeal President Justice Michael Ramodibedi to resign after alleging he is to blame for the “mess” in the judiciary.

The Prime Minister’s call came a few weeks after he also asked Chief Justice Mahapela Lehohla to resign.
The chief justice is on extended leave pending retirement in August. Justice Ramodibedi has however refused to go and has instituted proceedings in the Constitutional Court. A civic group calling itself the Concerned Citizens two weeks ago petitioned Thabane to push out Justice Ramodibedi alleging he is to blame for the crisis in the judiciary.

Pholo says the “accountability of the courts in Lesotho has fallen short of expectations” because the judicial proceedings are inefficient. Judges, Pholo says, are reluctant to abide by the Speedy Courts Trial Act which stipulates clear timelines for the disposal of cases and requires judges to provide their written reasons.
She says judges argue that “compliance with the Act would result in courts dismissing many cases and thus failing to deliver justice to the parties”.

The Act was enacted after complaints that the legal system in Lesotho had become so bureaucratic and inefficient that crime suspects awaited trial for years. Under this Act a person must be charged within 48 hours of arrest or service of summonses. The law says a person cannot be remanded in custody for more than 60 days unless there are compelling reasons.

In criminal trials, the trial must begin within 30 days if a plea of guilty is entered and 60 days if a plea of not guilty is entered. Pholo also says that the Director of Public Prosecution (DPP) is overburdened. The DPP is the only authority responsible for the management of the prosecution of murder, treason and sedition and he decides whether to prosecute or not.

“This means that he or she has to personally look into each and every case that falls in the categories mentioned,” she said. “This causes serious delays in the hearing of the cases, particularly because the DPP has other responsibilities apart from assessing cases.” Pholo says the delays have resulted in some murder dockets waiting for the DPP’s assessment for as long as 20 years.

“This is exacerbated by the absence of any mechanism for holding the DPP accountable for such delays,” she says. Pholo has called for the review of the list of case types whose prosecution requires the personal sanction of the DPP. “The law must be amended to impose on the DPP the obligation to prosecute cases within a specified period, failing which he or she must submit a report to the relevant committee of the National Assembly giving reasons for the delay or must discontinue the case in question.”

Pholo’s study has also revealed that the government is often hesitant to comply with court orders.
She says the government has in some instances failed to “obey court orders that require it to pay compensation to victims of its illegal decisions and actions”.

“The failure to obey such orders has been attributed to a number of factors, including laxity on the part of the government and the lack of resources resulting from inadequate or non-existent relevant budgetary allocations.” The study also discusses the adaptation of international human rights treaties, management of the justice sector, crime and punishment, access to justice and the role of development partners.

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