Caswell Tlali
MASERU — The International Commission of Jurists (ICJ) has issued a damning assessment on the independence of Lesotho’s judges.
A report released by the ICJ on Wednesday says Lesotho’s High Court and Court of Appeal judges are not independent from the Prime Minister.
It says the Prime Minister wields too much power and influence in the appointment of judges to the extent that judges are not prepared to “embarrass the prime minister or executive”.
The current status was blamed on the composition of the Judicial Service Commission (JSC), a professional body that appoints judges, which is appointed by the Prime Minister.
“Membership of the Lesotho Judicial Service Commission is heavily skewed in favour of the executive,” reads part of the report.
“Both the Tanzanian and Lesotho Judicial Service Commissions reflect the legacy of colonial era appointments where individuals were placed through executive fiat.”
Lesotho’s constitution provides that the JSC should consist of the Chief Justice as its chairman, the Attorney General, chairman of the Public Service Commission or its member and a member appointed from among people holding high judicial office who is appointed by the King at the advice of the Chief Justice.
The ICJ quotes one of its interviewees as saying this part of the constitution “makes it very weak to stand in the way of the Prime Minister as far as appointments are concerned”.
“If you are talking about the Attorney General, if you are talking about the Public Service Commissioner, the Chief Justice . . . at the end of the day it is the Prime Minister,” the interviewee said.
“At the end of the day we don’t really have a judiciary that is ready to embarrass the Prime Minister or executive.”
“The independence of the judiciary is tested quite accurately by political cases. I don’t recall in recent times the judiciary in its composite actually embarrassing the government.”
Quoting another interviewee, the ICJ says the “unique position in Lesotho is that in the appointment process there is nepotism, political patronage, and the whole thing . . . is not transparent”.
“I am very sorry to say that people who got appointed . . . is not good (sic). It’s bad for the legitimacy of the institution.”
The ICJ has also quoted the 2006 African Peer Review Mechanism report which said “the major problem that has often hindered checks and balances among Lesotho’s three main organs of the state is the executive’s political interference in both the judiciary and legislature, which development tends to undermine democratic governance to a considerable degree”.
The ICJ report says the “appointment of judges is premised upon meritocracy or political considerations”.
The report compared the Lesotho JSC with its South African counterpart and found that in South Africa the constitution allows “for up to 25 members, including opposition politicians, a member of the law society; a university law lecturer, and other non-executive members”.
However the report says it is worth noting that despite the broad-based membership of the South African Judicial Service Commission there is extensive criticism of the appointment process, as it relates to the domination and influence of ANC politicians.
The ICJ also quotes Chief Justice Mahapela Lehohla in a 2003 speech where he countered suggestions to increase the size of the Lesotho JSC to make it like South Africa’s.
“A biting by the bug of democracy has caused strong debate in some quarters that the Commission’s size be increased in numbers to be more representative of various components of society. While there may be merit in this argument wisdom cautions that this move should not be rashly embarked upon,” Chief Justice Lehohla is quoted as saying.
“It would be tragic to increase the composition of the Judicial Service Commission merely for the sake of increasing it. Saying this I take comfort in the words of The Hon J H Steyn expressed in a memorial lecture . . . ‘The Judicial Service Commission is a professional body, and unlike its South African counterpart, not large, unwieldy and politically suspect because of its composition’. I entirely agree and would only go as far as saying if there need be change it should be minimal and consist of nothing else but personnel drawn strictly from professional bodies.”
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