OPINION: The role of judiciary in promoting democracy

By Tsikoane Peshoane

THE judiciary in Lesotho has recently been subjected to serious public scrutiny following the passing of controversial judgments by judges of the High Court.

In recent years civic organisations such as the Lesotho Council of NGOs, Christian Council of Lesotho as well as SADC have intervened to build bridges between adversarial groups.

The public appreciates the role of these civic groups in resolving disputes in Lesotho.

The biggest challenge for our judiciary has to do with its role in strengthening our fragile democracy.

In this article I wish to relate our recent history which might help illuminate the role of the judiciary in our modern democracy.

Way back in 1994, the Lesotho Council of NGOs and SADC intervened and restored the Basotho Congress Party’s landslide victory after it won general elections in 1993.

This development marked a new era in our political evolution.

In 1998, we saw SADC coming to the rescue of the Lesotho Congress for Democracy  government after it was nearly swept out of power.

Following the disputed elections in 2007, a mediator from SADC landed in Lesotho to intervene in a dispute over the allocation of proportional representation seats.

What is clear is that civic groups led by the Christian Council of Lesotho and Lesotho Council of Non-Governmental Organisations emerged in all these instances as peace brokers following a controversial decision by the High Court.

In a normal set-up, the decisions of the High Court or the Court of Appeal should have been the final stage in the resolution of disputes.

Reality has however proven otherwise.

We have seen that judgments of the High Court and the Court of Appeal have not been effective in maintaining peace and stability particularly after elections in Lesotho.

On the contrary the decisions of the High Court have stoked political conflict.

The decisions of the courts in electoral disputes have cast a dark shadow on the judiciary and its role in our democracy.

This trend is not peculiar to Lesotho.

It is found right across the African continent.

I want to argue that the judiciary must be subjected to public scrutiny.

This scrutiny must include the appointment of judges to the bench, the relationship between the legislature and the judiciary as well as issues relating to the enforcement of the law.

These issues must be debated openly if we are to entrench democracy and the rule of law in Lesotho.

Based on John Locke’s views on governments I think an important function of the judiciary is the protection of the minority against the tyranny of the majority.

For example, we have seen how the government and opposition parties view the Independent Electoral Commission as a scapegoat.

All parties participate in the appointment of commissioners but these same parties are quick to cry foul as if they are non-actors in the dispute.

The judiciary must spring into action under the circumstances to protect the commission which will be a minority in the interest of democracy and stability.

The courts have an inherent responsibility to protect the minority.

In my opinion it was imperative for the High Court of Lesotho to call those responsible for the creation of the mixed member proportional electoral system before the court could decide on the case of the Marematlou Freedom Party.

The interpretation of the law would have been considered an embodiment of justice and would have assisted parliament to continue to oil the system in the interest of strengthening our democracy.

In any mature democracy, the judiciary is not a pious, self-righteous community of a few wise members of society.

My final submission is nothing but a compliment on public initiatives by the Lesotho Law Society to restore the dignity of its members.

Of course there are members of the Law Society who take their career as a business.

These ones forget that their behaviour and attitude have a serious impact on the rule of law and the culture of democracy in Lesotho.

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