Mohalenyane Phakela
THE Judicial Reforms Committee (JRC), appointed by embattled chief justice Nthomeng Majara, has proposed the abolishment of the prime minister’s powers to appoint judges and to impeach the chief justice, the Lesotho Times has established.
This publication also established that the JRC wants to ensure the unchallenged supremacy of the chief justice as the head of the judiciary by abolishing the Court of Appeal and replacing it with a Supreme Court headed by the chief justice.
Currently the Court of Appeal is the apex court and its presidents are regularly seen as competing for supremacy with the chief justice who sits in the High Court. The president of the Court of Appeal can review and set aside judgements from the High Court including those of the chief justice.
In 2016, the Southern African Development Community (SADC) recommended that Lesotho implements constitutional, security sector, governance, media and judicial reforms as part of efforts to achieve lasting peace and stability in the country.
It was against that background that in May 2017, Justice Majara appointed the JRC which comprised of Justices Semapo Peete, Teboho Moiloa and the recently deceased ‘Maseshophe Hlajoane.
The three-member committee consulted various stakeholders that included the Law Society of Lesotho, the law faculty of the National University of Lesotho (NUL) and civil society organisations before drafting a document of proposed reforms. Key among these are the proposals to abolish the role of the prime minister in the appointment of judges as well as in the impeachment of the chief justice.
A copy of the document, seen by the Lesotho Times, proposes that the Court of Appeal should be abolished and it should be replaced by a Supreme Court of Appeal as the apex court of Lesotho. The Supreme Court will be headed by the chief justice who shall also be the head of the entire judiciary.
The prime minister will not have any say in the appointment of the chief justice who should be appointed by the king on the advice of the Judicial Service Commission (JSC) and with the approval of the Council of State.
To ensure transparency in the appointment of judges, it’s recommended that the JSC advertise the vacancy, invite stakeholders and the public to submit nominations. The JSC should also conduct public interviews of the aspirants and shortlist three nominees for the post of judge for the consideration of the King and the Council of State.
The JRC further proposes that the removal of the chief justice or any judge should only be initiated by the JSC. It proposes that the JSC should comprise of the chief justice as the chairperson, the deputy chief justice, the judge president of the High Court, the Attorney General, a legal practitioner of at least seven years’ experience designated by the Law Society, a professor or senior lecturer of law designated by the faculty of law at the NUL and a person of high moral integrity representing civil society.
The proposed full court hierarchy is as follows: a Supreme Court of Appeal which is followed by the High Court and then the subordinate courts which include the magistrates’ courts and the tribunals. At the bottom of the hierarchy there will be the customary law courts.
“The Supreme Court shall consist of the Chief Justice and a Deputy Chief Justice, and the number of Supreme Court judges shall not be less than six as parliament may prescribe through an act,” part of the JRC’s document on the proposed reforms states.
“The Chief Justice, as the head of the judiciary, shall be appointed by the King (Letsie III) acting in accordance with the advice of the JSC, with the approval of the Council of State.
“The chief justice shall hold office for a maximum of 10 years or until retiring at 65, whichever is earlier, provided that if the chief justice’s term in office expires before retirement age, he or she may continue as a judge of the Supreme Court.”
The High Court, on the other hand, shall be headed by a judge president, a deputy judge president and it shall also include judges whose number shall be determined by the chief justice.
“The High Court shall have unlimited original jurisdiction to hear and determine civil or criminal proceedings and powers to review decisions or proceedings of any subordinate court, court martial, tribunal, board or office exercising judicial or public administration functions under any law.
“It (High Court) shall have jurisdiction to hear any questions concerning the interpretation of the constitution of Lesotho including the determination of whether any law is inconsistent with or in contravention of the constitution. It may also determine any matter relating to the constitutional power of state organs and their relationship functions.”
The document further states that “Lesotho is a democratic country and all major judicial appointments …should be shielded from the influence of party politics in order that the legitimate authority (of the judiciary) and the confidence of people should be maintained”.
“The active role of the executive in the appointment and impeachment of process calls for a drastic overhaul in order to strengthen and ensure judicial independence, that is, the security of (judges’) tenure and the meaningful separation of powers. This is essential in a vibrant democracy and for the rule of law.”
“A judge shall retire from office at the age of 70 but may choose to retire at any age after attaining the age of 65 and that can be done by giving notice to the Judicial Service Commission in writing.”
The committee further states that any judge, including the chief justice, should be removed on the grounds of the judge’s inability to execute their functions, infirmity of mind or physical incapacity. The judge and chief justice can also be removed for “misbehaviour or misconduct constituting a breach of a code of conduct prescribed for judges”.
“The removal of the Chief Justice or judge may be initiated only by the Judicial Service Commission in its motion or due to complaints from the Judicial Complaints Commission.
“The Judicial Service Commission shall consider the petition and if satisfied that it discloses a ground for removal, it will advise the king to appoint a tribunal consisting of the three senior judges, two persons of high standing and integrity. A judge who is aggrieved by a decision of the tribunal may appeal against the decision to the Supreme Court within 14 court days after the tribunal makes its recommendations to the king.
The proposals to abolish the role of the executive in the appointment and removal of judges comes against the background of clashes between the judiciary and the executive in recent years.
First it was the then Prime Minister Pakalitha Mosisili who was accused of unfairly using his powers to target the President of the Court of Appeal, Justice Kananelo Mosito.
Justice Mosito was forced to resign in 2016 the wake of the establishment of a tribunal by Dr Mosisili to determine his fitness to hold office over allegations that he had evaded paying taxes.
The tribunal had recommended Justice Mosito’s ouster, finding that he had failed to honour his tax obligations and he had acted unlawfully in investigating his fellow judges to establish if they had also paid their taxes as he sought information to advance his cause.
He was eventually reinstated in November 2018 after a lengthy and ultimately unsuccessful court battle by four lawyers, namely, King’s Counsels Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika to nullify his 1 August 2017 reappointment by Dr Thabane who assumed power in June 2017.
Of late, Prime Minister Thomas Thabane has also been accused of interfering with the independence of the judiciary after he recommended the impeachment of Chief Justice Majara over alleged gross misconduct including the failure to preside over the huge backlog of cases before the courts.
Justice Majara is currently suspended and her impeachment was put on hold to allow both parties to negotiate an exit package for the embattled chief justice. The two sides have already agreed on a M9 million exit package and all that remains is for Dr Thabane and his governing coalition principals to approve of the package
