MASERU — A prominent lawyer, Sakoane Sakoane, has attacked the constitutional provision that allows for the appointment of the chief justice and the president of the Court of Appeal without involving the Judicial Services Commission (JSC).
Sakoane was addressing a two-day lawyers’ symposium on judicial independence, impartiality and accountability held at Lehakoe Club in Maseru that ended on Friday.
“The heads of the Court of Appeal and the High Court are purely political appointments made on considerations best known to the prime minister when advising the king in the matter,” Sakoane said.
“This situation provoked a challenge to the independence of the chief justice and is one matter for the same reason that he was a political appointee who could not be trusted to adjudicate fairly and objectively where the prime minister who is deputised by the chief justice’s brother was being challenged.”
The seminar, hosted by the Law Society of Lesotho and co-sponsored by the International Commission of Jurists and Irish Aid, attracted law experts from a number of southern African countries who included High Court and Court of Appeal judges.
Justice Matheadira Ramodibedi, President of Lesotho’s Court of Appeal who is also the Chief Justice of Swaziland, attended the seminar.
But Lesotho’s Chief Justice Mahapela Lehohla was not in attendance.
Sakoane was, however, quick to say the appointment of the chief justice and president of the Court of Appeal did not necessarily make them appendages of the executive.
“Their training and oath of office oblige them to discharge their functions on the yardstick of objectivity and fidelity to the constitution and the law,” he said.
Sakoane recalled how the opposition Basotho National Party challenged the handling of its political case by Chief Justice Lehohla arguing that he was an appointee of Prime Minister Pakalitha Mosisili and a brother to Deputy Prime Minister Lesao Lehohla.
The High Court dismissed the party’s application on grounds that the “complaint that the prime minister participates in the appointment of justices is blind to common practices in most democracies of the world including the Commonwealth”.
Sakoane said judicial officers in lower courts were also under a political appointee who is the principal secretary in the Ministry of Justice.
“The principal secretary is a political appointee of the prime minister and not a member of the Judicial Services Commission,” he said.
“As to why the commission sought to put judicial officers under the administrative control of the principal secretary. . . is still a mystery.”
Sakoane said the High Court was wrong in holding that this arrangement would not have any harm as long as the JSC had the final say in what the principal secretary does or does not do.
“What the High Court missed is that nowhere does the constitution give the commission power to place the judiciary under the administrative control of an officer in the executive,” he said.
He said the JSC was not permitted to delegate its functions of recruitment, selection and removal of judicial officers to any person or body except its members, a judge or any other person holding office under the relevant section of the constitution.
Sakoane said the status quo had created a situation whereby treatment between the higher judiciary and the lower is “differentiated and disproportionate” in terms of resources and upkeep.
He said the lion’s share of the resources is channelled to the High Court which sits in Maseru while junior courts are getting a meagre share despite the fact that they are in all districts and are easily accessible to the public.
“Consequently, there is a high turnover of experienced judicial officers who leave for better conditions of service in the public and private sector,” he said.
Addressing the same seminar, Justice Semapo Peete spoke strongly against the politicisation of the judiciary saying it should always be avoided as it “can corrupt the judiciary”.
Justice Peete also raised concerns that the chief justice and the president of the Court of Appeal are appointed by the king on the advice of the prime minister without consulting the JSC.
“The main question is: are they or should they be beholden or servile to the executive?” Justice Peete said.
“I only pose this question and give no answer.”
Justice Peete also warned that the inadequacy of resources that are allocated to the judiciary could contribute in a large measure towards corruption.
“Tensions and alienation creep in when little or grossly inadequate financial resources are allocated to the administration of justice in the government’s budget – and the judiciary is relegated to the position of a beggar in order to keep the court system on an even keel,” he said.
“The inevitable result of persistent failure to address the needs of the judiciary is that the scourge of corruption rears its ugly head and bribery sets in.”