THERE are three main organs of government in any modern democratic state, namely the Executive, the Legislature and the Judiciary, in no particular order. The chief proponent and founder of the theory of separation of powers was the French philosopher-cum-lawyer Montesquieu in his thesis of 1748 titled L’Esprit des Lois.
The precursor to Montesquieu was the English philosopher, John Locke, in his Two Treaties of Government published in 1690. In carrying Locke’s analysis much further and laying the foundational lay-out for the modern principle of separation of powers, Montesquieu in addition to being irked by the despotic tendencies of King Louis XIV of France, wrote: “In every state, there are three kinds of powers, the legislative power, the power executing the matters falling within the law of nations, and the power executing the matters which fall within the civil law.
“Through the first, the Prince or Magistrate makes the laws for the time being or for all the time, and amends or repeals those previously made. Through the second he makes war and peace, sends and receives ambassadors, establishes order, prevents invasions. Through the third he punishes crimes and judges the disputes of private individuals. This last is called the Judicial Power and the second is known as the Executive Power.”
He went on to show that this division of power is essential for liberty, writing: “When the Legislative Power is united with the Executive Power in the same person or body of magistrate, there is no liberty because it is to be feared that the same monarch or the same Senate will make tyrannical laws in order to execute them tyrannically. There is again no liberty if the Judicial Power is not separate from the Legislative Power and from the Executive Power. If it were joined with the Legislative Power, the power over the life and liberty of citizens could be arbitrary, because the Judge would be Legislator. If it were joined to the Executive Power, the Judge would have the strength of the oppressor. All would be lost if the same man or the same body or chief citizens, or nobility, or people exercised these three powers, that of making laws, that of executing public decisions and that of judging the crimes or the disputes of private persons.”
For the purpose of this column, I will concentrate solely on the judicial branch of government. Though it might be considered the weaker cousin of the other two, namely, the Executive and the Legislative branch of government, in terms of the fact that it relies on the other two for appropriation of funds and execution of its decisions, it is nevertheless a repository of awesome powers. In terms of funding and executional powers, section 118 (2) and (3) the constitution of Lesotho is instructive in this regard. It enjoys the Executive arm of government to do all in its power to assist the Judiciary in the execution of its constitutional mandate. This is in terms of financial, police and other resources in addition to enacting the institutional and legislative framework necessary for the Judiciary to execute its mandate.
To demonstrate the extent of the enormous power wielded by the Judiciary the distinguished emblem of the blindfolded lady of justice holding a sword while holding aloft the scales of justice is telling.
This demonstrates that courts, the Judiciary, is charged with being the final arbiter being individual citizens and litigants. The courts are the ultimate guardians of the fundamental human rights where it is alleged that the state and other institutions of government and organizations are alleged to have violated those rights. The courts are charged with interpreting the law and holding the Executive, the Legislature and other institutions accountable. Without a transparent, inclusive judicial appointing structure and authority the ideal of a Judiciary that is representative, inclusive, and with integrity becomes a pipe dream only good on paper much as this ideal and principle might well be articulated in our Constitution and international principles and conventions.
It has always appalled me that since the advent of democratic dispensation in 1993, it is only the Judiciary and not the other arms of government such as the Executive and the Legislature that lacks inclusivity and transparency in its appointments, promotions and deployments. I am not casting aspersions on the integrity of the Judiciary but it is well-known that members of the Executive and the Legislature are all appointed by popular vote by all sectors of the population that are stakeholders in their respective administrations, and personnel. Fortunately, we have a very independent, professional Judiciary with competent personnel that adheres to its constitutional imperatives and principles but more needs to be done in terms of inclusivity in the composition of the Judicial Service Commission (JSC).
This is where the crux of my arguments lies. It is that the Judiciary is an arm of government that is a repository of awesome and critical powers. It is funded from the coffers of the state, the general public and is accountable to the general population. Yet more than two decades since the advent of our new democratic dispensation only the other arms of government, namely: the Executive and the Legislature, are fully representative of the entire broad spectrum of our society. Not so the Judiciary in terms of composition of the JSC.
My reading of the relevant legislation and chiefly the constitution limits of the membership of the JSC, the august body that is charged with appointments, promotions and deployment as well discipline of all judicial personnel, to the Chief Justice, as the chairman. The other members being the Attorney-General, the Chairman of the Public Service Commission and a Judge.
Without any scintilla of doubt these are the best legal and administrative minds in the country but they ought to be augmented with other equally skillful personnel with expertise from other stakeholders in judicial matters.
In this regard, like as is the case in other jurisdictions in many parts of the democratic world, one has in mind the enactment of legislation that ensures that all sectors in society are represented in the JSC. These include but not limited to, academia, the legal fraternity, non-governmental organizations, civil society, business community and other key stakeholders in the administration of justice, I am advancing this argument because even in Sesotho we have an idiom that: “Bohlale ha bo ahe ntlong e le ‘ngoe,” loosely translated to mean; “wisdom is not the sole preserve of one single household.” This means that for an onerous task to be executed efficiently one needs a collective effort and wisdom of many individuals. I have no doubt that appointing, deploying, promoting and disciplining judicial officers, the mandate of the JSC, is not an easy task that needs collective efforts, wisdom, vision and technical expertise. This also eliminates perception of nepotism and cronyism.
Beside, though this might appear to be a peripheral requirement for the JSC, a revamped JSC that is inclusive engenders not only perceptions but real elements of transparency and ownership of its decisions across the broader societal spectrum that it is actually intended to serve and promote its values, principles and vision. This also engenders ownership by everybody across the broad spectrum.
Further, it is only fair also for governance issues that because the Judiciary is bankrolled by the government and therefore the taxpayer, that it includes members of the larger sectors in its membership of the JSC. Even companies that are only the concern of their shareholders have among their Board of Directors, members who are prominent from different fields if only to strengthen their decisions and get the best available expertise with invaluable in-put from these prominent experts. It only makes sense therefore that the Judiciary in addition to being bankrolled by the taxpayer to include representatives of the greater society in the composition of the JSC without critically compromising the cardinal principle of judicial independence and non-interference in its adjudicative mandate. I am therefore not arguing that in dispensing justice there should be interference and compromising its independence.
Moreover, the Judiciary in particular the JSC, should be seen to embrace, embody and reflect the modern democratic trends and features of Lesotho which is inclusivity, transparency, governance and above all else mirror our ideals, vision and aspirations. This way we can truly have a truly vibrant democratic and modern nation that has institutions that are capable of standing tall among its peer institutions such as the JSC and the Judiciary. However, the bottom line is we still have a highly professional competent Judiciary that needs only to be revamped, if also only to allay wrong perceptions.