MASERU — A serious conflict is brewing between judges and lawyers over a commission of inquiry set up by the Law Society of Lesotho to investigate the crisis in the county’s judiciary.
The Law Society set up the commission last year to investigate “any possible corrupt, unprofessional, unethical and unjudicial practices that may have crept into the judicial system”.
To gather the evidence the commission is supposed to conduct public hearings and gather evidence from lawyers, judges and other stakeholders in the judicial system.
It is these hearings that have sparked off a fierce fight between the judges and lawyers.
Chief Justice Mahapela Lehohla recently wrote to the society indicating that the bench will not allow the commission to interfere with the work of lawyers and judges at the courts.
He said the establishment of the commission had not been published in the government gazette as required by the law.
This week the Lesotho Times (LT) spoke to the Law Society president, Zwelakhe Mda, about the commission and its agenda.
Below are excerpts from the interview.
LT: What motivated the Law Society to set up this commission of inquiry?
Mda: The commission is not a recent idea. It is pursuant to a resolution that was made a long time ago. The society was of the opinion that there was a general loss of respect for the judiciary in this country.
There was a tragic loss of confidence in the judicial system by the public and lawyers. Faced with that realisation we decided that there was need to investigate the issue. We decided that the people must participate in the process hence the commission.
LT: Was there a survey to prove that there was indeed loss of confidence in the system.
Mda: It was clear from the media coverage that the public had lost confidence in the system. The lawyers have observed this and said as much.
LT: What are the terms of reference for the commission?
Mda: We want the commission to investigate any possible corrupt, unethical and unjudicial practices that may have crept into the system. The commission also has to look at the independence of the judicial system in this country. There are concerns about the current composition of the Judicial Services Commission (JSC).
LT: What are the major weaknesses of the JSC?
Mda: The main problem is with its composition. It has four members namely the Chief Justice, Attorney General, the chairman of the Public Services Commission (PSC) and a judge recommended by the Chief Justice. You can see that something is not right about this situation. The judge is likely to be the Chief Justice’s man. I also don’t know what the chairman of the PSC’s role is on the commission. What is clear is that there is a huge anomaly in that the commission is composed to cater for a certain player in the judiciary. We are saying this needs to be corrected urgently so that JSC is independent and representative of all stakeholders. It’s only Lesotho which exhibits such an anomaly in the commission.
LT: What is the impact of this anomaly?
Mda: Perception is very important in the legal sector. We need to change the negative perception that has hit the sector. To do that we need to look at institutions like the Judicial Service Commission. The current composition of the JSC creates a real problem. It’s not representative enough. In this case the whole composition of the commission is skewed in favour of the appointers. For example the recruitment of judges is not open. I am the president of the Law Society but I don’t know how judges are appointed in this country. We need to be professional.
LT: But the commission of inquiry is already facing problems. The Chief Justice says it’s a private matter that should not interfere with the courts.
Mda: We are worried but not surprised by this lack of co-operation. We had approached the Chief Justice to find out whether a special arrangement could be made to allow the lawyers time to participate in the inquiry. The Chief Justice’s response was that this was a private matter. We are dealing with a major crisis in the system yet this is the response that we get. My point is that even without the lawyers attending the commission’s hearings we have always had a delay in the court hearings. We have had court business being postponed because judges are either attending workshops or some personal business.
LT: Is it arrogance on the part of the bench?
Mda: We are concerned by the attitude. This commission is not a witch-hunt exercise. I must also state that contrary to the popular misconception the Law Society is not a voluntary organisation. It’s a statutory body which has a clear mandate to make recommendations in the development and running of the judiciary. It is a watchdog. I personally think that the Law Society should be doing more. We should have taken this step a long time ago.
LT: We have seen cases that date back to as far back as 1990 coming to court. Judgments have been delayed. Do you believe that some members of the bench are simply indolent?
Mda: No, we have to look at the environment that they are operating under. It’s contextual. If you look at the weekly roll at the courts you will find that there is an unfair distribution of work (cases). Other judges are burdened with cases while others have very few cases to deal with. Some are working hard while some are not. It is the general environment that needs to be corrected. We need the judges to give evidence to the commission so that we find a solution. I personally don’t think that there is any judge who is particularly lazy. The problem lies with the system that has been created over years.
LT: But other judges say the lawyers are part of the problem.
Mda: Of course. This commission is not meant to investigate judges only. It’s a broader effort to find solutions to the crisis that we have in the whole system. Every stakeholder in the system has a part to play in the process. We are looking for the truth.
LT: Do you think that the judges are trying to sabotage the process?
Mda: We have created a system of complacency in the judicial system. I am not surprised that some people might feel threatened by this commission because it is going against the normal practice that they have known. People are not happy about a scrutiny of their work. We are making history here and I don’t understand why some people want to stand in the way. How will they be remembered? Do they want to be remembered as the people who worked against such an historic and noble cause?
LT: Why do you think that there is a general reluctance to cooperate with the commission?
Mda: I can only understand it from the context in general. Because this is a process of scrutiny other people feel threatened. People are not used to being scrutinised. It’s human nature. To come up with a solution we need to accept that we have a problem. We need to name names in order to move forward.
LT: This commission should have been triggered by specific events. I mean cases that illustrate these problems clearly. Do you have such cases?
Mda: There are a lot of cases that come to mind but there is need to substantiate them with clear evidence. These are matters of law. I am of the view that the lawyers themselves have such cases and they must come and give evidence to the commission. I have clear cases but I cannot talk about them at this moment.
LT: But there should be a case that you recall as a lawyer and you can talk about it in general terms.
Mda: There is a matter in which Harvest FM applied to use a hall for an event. They were refused permission. The matter came to court and found in the favour of the radio station but there was one surprising thing in the ruling. The court said people should not wear party regalia to the event.
That part of the ruling had nothing to do with the case. It was an entirely different matter. My colleague Haae Phoofolo for the station handled the matter but I have never been so surprised. The court pronounced itself to violate the basic freedoms of expression and association.
LT: When will the commission conclude its work and what do you expect to get out of it?
Mda: We cannot set a time frame. This is a process. We want this to be well done. It has to be a thorough process. At the end there should be a comprehensive document that we can use to correct the situation.