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Appeal court back in business

RELEBOHILE KHOALE and MANTŠALI PHAKOANA

Lesotho’s Court of Appeal this week finally held its first session of the year, exactly a month after its opening was controversially suspended allegedly due to lack of funds.

The apex court’s opening followed incessant pressure on the government by the Law Society, which warned that the state had a democratic mandate of not only ensuring the financial independence of the judiciary but also providing it with sufficient funds and resources to enable it to effectively discharge its duties.

“Systemic lack of funding for the judiciary is antithetical of the democratization process and development,” said Law Society President, Tekane Maqakachane, speaking at the opening session of the court on Monday this week.

“The Law Society is undertaking a study on the state of the judiciary in Lesotho and will take appropriate measures, based on the report, to ensure the Government of the Kingdom of Lesotho discharges its constitutional mandate towards supporting the judiciary.”

However, the decision not to hold the court’s first session on April 15 ostensibly due to lack of funds had met with widespread condemnation from both analysts and opposition political parties, who accused the government of withholding its funding in order to have some level of control over it.

Incidentally, the postponement of the court’s opening session came in the midst of a fierce internal battle over the leadership of the ruling All Basotho Convention (ABC), which has since been brought before the High Court. Acting Chief Justice ’Maseforo Mahase has since made some rulings on the matter in the High Court, but the judgements have not gone down well with some members of the ABC and political commentators.

Justice Mahase’s judgements, the analysts have said, were not only bizarre but also seemed to go against the will of the ABC members who had elected a new National Executive Committee (NEC) in February. The judge’s ruling not only annulled the election results but also reinstated the party’s old NEC, among other decisions.

Seemingly targeted to frustrate any opportunity to appeal the High Court decisions as the ABC conflict raged on, the first sitting of the Court of Appeal was suspended, sparking an outcry with the Law Society among the most fierce of the critics.

The reason initially offered that the court’s opening had been suspended due to lack of funds was later dismissed as untrue by both the Finance and  Justice Ministers, arguing the judiciary had been awarded enough funds by parliament to operate from April1. The denial added to the mounting criticism of government allegedly interference in the judicial system.   

However, after the Law Society took every opportunity to speak out against the dangers of government’s interference with the independence of the judiciary, as well as meeting various stakeholders, the Court of Appeal finally resumed its sessions this week.

“Apart from being legal advisor of the state, the Attorney-General’s responsibility is to defend the judiciary and the Constitution.

“This is the duty of the office of the Attorney-General to be exercised either by him directly or through relator claim where an interested civil society organization may be authorized to institute a claim in the name of the Attorney-General,” Maqakachane said during the opening session.

“I wish to commend the Court of Appeal, the Deputy Registrar to the Court of Appeal, the support staff at the Court of Appeal and members of the legal profession for ensuring the session of the Court of Appeal becomes a reality.”

Maqakachane emphasised the Law Society and its membership were neither proponents of, nor governed by, situational ethics.

“Nothing in our justice system is wrong or right depending on the context and the personalities involved.

“To us, all conduct and action, whether good or bad, should be judged on the basis of its effect and impact on the administration of justice, the rule of law and constitutionalism,” said Maqakachane as he cited Section 118(3) of the Constitution of Lesotho.

“For the first time in the history of the Court of Appeal, a session of the court had to be suspended.

“For the first time in the history of this nation, the reason for the session not being continued is absence of funds. This is unheard of and unacceptable by any democratic standards,” charged Maqakachane.

He further pointed out that a successful navigation of the law-fare requires an independent judiciary, both institutional and personal.

A strong, dependable character of a judicial officer was key but this could only be possible with an independent judiciary, Maqakachane added.

“But even with these constitutional mechanisms, a weakling may, none-the-less, deflect the course of justice,” he said, further noting developing a strong character could not happen overnight.

However, Maqakachane said the Law Society was calling upon judges to serve people without fear or favour and in the interest of the proper administration of justice, the rule of law and constitutionalism.

Meanwhile, Maqakachane’s sentiments were echoed by a coalition of opposition parties comprising the Democratic Congress (DC), Lesotho Congress for Democracy (LCD), Marematlou Freedom Party (MFP), National Independent Party (NIP), Democratic Party of Lesotho (DPL) and Popular Front for Democracy (PFD) which condemned Thabane’s administration for allegedly meddling with judicial independence.

The Official Leader of the Opposition, Mathibeli Mokhothu, cited the protracted ABC power-struggle that is now before the High Court as a clear example of abusing state-power to sway judicial decisions.

He also said other examples of the government compromising judicial independence were the suspension of, and manoeuvres towards, removing Chief Justice Nthomeng Majara as well as the 2017 expulsion of a South African retired Justice appointed President of the Court of Appeal, Justice Robert Nugent expelled without following due process.

“On Justice Majara’s issue, Thabane’s government has wrongly exercised its powers by suspending her without following due legal procedures.

“When we came to her defence, they promised they would work towards addressing that and consider giving her a handsome exit package but to date, there is no progress,” said Mokhothu.

However, Mokhothu also said the opposition had still protested that the money promised to Justice Majara was yet another case of abuse of power by Thabane’s administration.

“The fact that the government is keeping public resources does not give them leverage to interfere with independent institutions like the judiciary.

“The question should be; what interest does this government have to insist on buying out a judge out of office?

“The judiciary is one of the three fundamental pillars of good governance; it should be independent. Interfering with the institution can only put this country into a crisis,” Mokhothu said.

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