MASERU — The Attorney General and the Law Society of Lesotho gave conflicting legal opinions to Cabinet at the beginning of clashes between Chief Justice Mahapela Lehohla and President of the Court of Appeal Justice Michael Ramodibedi over who is senior in 2008.
The Lesotho Times can reveal that the Cabinet sought legal opinion on the matter in September 2008.
And seven months later it issued a directive saying the President of the Appeal Court is senior to the Chief Justice in protocol.
In doing this the Cabinet was following the law society’s legal opinion which was completely opposed to the one Attorney General, Tšokolo Makhethe KC, had provided.
The attorney general provided his legal opinion on October 15 while the law society provided theirs on November 11, 2008.
Law Society president Zwelakhe Mda said the Constitution clearly stipulates that the President of the Court of Appeal is senior to the Chief Justice.
He noted that all judges of the Court of Appeal were also above the Chief Justice.
Mda argued that section 123(2) of the Constitution provides in descending order that the judges of the Court of Appeal shall be the President, Justices of Appeal, the Chief Justice and other puisne judges of the High Court who are ex-officio members.
“Below the Court of Appeal ranks the High Court,” Mda reasoned, adding: “The judges there are the Chief Justice and puisne Judges,” according to section 119(2) of the constitution.
“In the event of a vacancy in the office of the Chief Justice, such vacancy has to be filled in by a Justice of Appeal or a puisne judge or other person qualified to be appointed as a judge of the High Court,” he said.
“The constitutional scenario, therefore, is that the President of the Court of Appeal and Justices of the Appeal rank higher than the Chief Justice and puisne judges.”
On the other hand, Makhethe argued that the Chief Justice by virtue of a “multiplicity of wide-ranging and considerable constitutional powers and functions” is senior.
Makhethe quoted section 51(3) of the Constitution which says the Chief Justice administers the oaths to the King or to the Regent.
“In the absence of the Chief Justice, by a judge of the Court of Appeal or some other judge of the High Court,” Makhethe argued.
“There is, thus, a lot to be said in favour of the proposition that of the judiciary branch of the state, the Chief Justice is its head.”
Makhethe also says the norms and practices in Lesotho and other countries of the Commonwealth suggest that the Chief Justice is the head of the judiciary.
He said the President of the Court of Appeal is senior to the Chief Justice only “in terms of judicial decision-making” just because he is “the leader of a specialist tribunal within the judiciary, whose decisions take precedence over those of the High Court.”
The President of the Court of Appeal is no higher in any other sense than that, Makhethe says.
But Mda did not agree with this point and said, “It is manifest confusion of thought to classify the Court of Appeal as a specialist tribunal. The Court of Appeal falls under section 118(1) (a) as an ordinary court and not under section 118(1) (d) which is specifically on tribunals.”
Makhethe had also reasoned that in terms of the Constitution “none of the two courts is more superior than the other”.
“In other words, according to the Constitution, none is inferior,” Makhethe said.
Mda replied that “the assertion that the Court of Appeal and the High Court are in effect equal flies in the face of section 118(1) of the Constitution”.
“Moreover, section 129 shows that appeals from the High Court go to the Court of Appeal. So that as between themselves, the Court of Appeal is superior to the High Court,” Mda said.
“Superiority is not determined in accordance with the nature and amount of job the role occupant does, what is critical is the constitutional status of the office.”
Makhethe’s conclusion, however, was that the cabinet’s decision to either rank the President of the Court of Appeal above the Chief Justice or vice-versa “cannot be easily challenged.”
“Neither can the courts of law lightly interfere with such decisions as they are, by their very nature, of the essence of separation of powers unless some clear illegality is shown to have occurred,” he said.
In other words, according to Makhethe, if the next government decides to rank the Chief Justice above the President of the Court of Appeal the decision will not be easily challenged unless some illegality happens.