Judge’s ouster an assault on judiciary

Judge’s ouster an assault on judiciary

In order to comprehend the political consequences of the firing of the President of the Court of Appeal in Lesotho, it is important to understand the constitutionality and politics surrounding the appointment of judges and the processes of removing them in a democracy.  In a democratic system, the rule of law is supreme. Since our discussion takes place within the confines of democracy, it is important to outline some critical characteristics of democracy so that it will be clear what we are talking about.

The concept of democracy has acquired various meanings to different people. In fact, democracy is quintessentially a contested concept. A democracy is a rule-based system. Competitive elections are central to most democratic governments.
Equally important in a democracy is the observance and protection of human rights. These rights are enshrined in national Constitutions. Very few countries in the world today would like to be labelled undemocratic or even illiberal democracies.

Democracy

Since 1993, Lesotho has had more elections than most countries in the Southern African Development Community (SADC) region. Basotho have not only excelled in holding competitive elections but they been very successful in changing their government through elections.
Of all the current 15 SADC countries only four including Lesotho have been able to change their governments through democratic elections. The rest of the other SADC democracies have been governed by one dominant party since their independence.
In a democracy, transparent processes are followed and there is full accountability. That process is called good governance. Governments govern by consent and adhere to laws and good democratic principles.

In a democracy, there is justice and freedom. In this democratic environment people’s differing opinions are not censored but are celebrated. James Stewart Millis and Jeremy Bentham saw this system as providing the happiness to the majority.
Since the majority of the people are happy in a democracy, this makes the system special because it is the main reason why leaders and people likewise respect and obey laws.
Under this system there is higher tolerance for other people’s views. Only in a democracy are human rights protected. These are the rights to liberty, property and life. The state has an obligation to ensure that these fundamental rights are secured.

This is for our common good. It is in society’s common interest to respect the laws that were arrived at for the collective interest of everybody.
It therefore follows that nobody should be fired without being heard or presenting his side of the story. Those in the legal profession call this the principle of audi alterempartem rule.
To fire someone without providing him or her with an opportunity to be heard would be a violation of the principles of natural justice.

Justice

This brings us to another even more emotive concept while still tracing Justice Nugent’s dismissal. Basically, justice requires us to give to others what they are due or entitled to. The concept of justice is analogously challenging.
There is social and procedural justice. Let’s recall that politics is about the equitable distribution of resources. Did our government consider all these principles before firing Justice Nugent? If he was released without being heard, what would this say about our jurisprudence?

Appointment and dismissal of judges

In most democracies there are clear Constitutional processes for the appointment and removal of judges. It is very important for the judiciary to jealously guard their independence and not to acquiesce to any form of abuse.
In the United States, the President can appoint a lawyer to be a judge. But that lawyer has to pass a rigorous test of questioning by the Senate. Most democracies have both selection-appointment and impeachment processes in their Constitutions.
What is important to be noted here is that the process of appointment and removal is entrenched in these Constitutions like the Lesotho Constitution.
It is therefore unheard of that a sitting judge can be impeached and thereafter reappointed. The principle of judicial independence is sacrosanct in any democracy.

The consequences of the dismissal of Justice Nugent

It is common knowledge that Dr Kananelo Mosito was impeached and subsequently replaced by Justice Nugent as the President of the Court of Appeal in Lesotho. The question of Justice Mosito’s impeachment is not the subject of this paper.
This paper will focus its attention on the removal of Justice Nugent. We have discussed at length about the importance of following the law in a democracy and how individuals like Justice Nugent have to be treated by governments under a democratic dispensation.
It also public knowledge that on the 10th August 2017, Justice Nugent wrote a letter to His Majesty King Letsie III and the Prime Minister claiming that his removal from the highest court was unconstitutional.
He cited the Legal Notice 62/1017 in the Gazette of 1st August 2017 published by his Majesty on the advice of the Prime Minister Thomas Thabane.
The letter read in part: “It appears to me that the purported removal from office is contrary to Section 124 (3) and (4) of the Constitution of Lesotho and invalid but I do not intend becoming embroiled in any controversy on that issue.

To the extent that the notice is invalid . . . I find it necessary to add that I am disappointed at the lack of courtesy in failing to inform me in advance of your and his Majesty’s intentions.
Had I been informed I would have gladly resigned without the need for my purported removal, which I found extremely insulting”.
Clearly, something is very wrong here.

But before passing judgment relating to whether Justice Nugent’s removal was legitimate or illegitimate, it’s important to revisit the above Constitutional section. Section 124 of the Lesotho Constitution especially sub-section three, discusses at length the appointment and the qualifications of the appointment of a judge to the apex court.
Nevertheless, Section 4 becomes more crucial in the whole process regarding the removal of which Judge Nugent referred to above.
Section 124 Subsection 4 of the Constitution of Lesotho among others makes it mandatory that “Before tendering advice to the King for the purpose of this subsection, the Prime Minister shall consult the President if he is available”.

It is very clear from the President’s (Justice Nugent) letter that there was no consultation as the constitution mandated.
The consequence of this action by the premier is that this was a violation of the Constitution of which he was sworn to protect before the nation on the 16th June 2017 when he took oath of office as Prime Minister.
The Attorney General under Section 98 (2), (C) of the Constitution of Lesotho ought to have advised the Prime Minister against this violation which is an erosion of law and order.
Surely, this should not be allowed in a democracy where everyone obeys laws and where our liberties are protected.
It is under a democratic system where our rights are secured and where we expect to do to others what we expect to be done to us. That is a paramount requirement of justice. Justice demands equality before the law.

Human rights irrespective of our social standing must be protected and not violated. The removal of the judge was not only undemocratic but was a direct attack on the independence of the judiciary and a violation of the principle of separation of powers.

Is Lesotho an Illiberal Democracy?

While Lesotho has seen many elections as discussed above, it would appear that the current political leadership will likely take the country onto the path of illiberal democracy. This is where elected rulers pay little attention to individual rights such as free speech and fair employment practices.
It is under this environment where malpractices such as unfair labour practices are rife and opposition to what the rulers do is difficult and people are manipulated through control of state media and the use of state apparatus.
In this situation, there is impunity and the courts are not respected. It would appear that something drastic must be done to arrest the country from taking this dangerous political trajectory.
The independence of the judiciary is sacrosanct in any democracy. This of course does not obtain in an illiberal democracy. The dismissal of the President of the Court of Appeal and an attempt to appoint an impeached justice is not a good omen for Lesotho. It will soil our image internationally.

Conclusion

The manner in which Justice Nugent was treated was very unfair and reflected a clear collapse of law and order. He did not get justice because the Prime Minister did not follow the audi alteram partem rule.  Justice involves following the rules, irrespective of the outcome. The constitution in section 124 (4) mandated the Prime Minister to consult the president of the Court of Appeal which he failed to do.  Where there is no justice there is anarchy and erosion of civil liberties. The unilateral dismissal of Justice Nugent, therefore threatens the happiness of the greatest number of Basotho under the current leadership.

If a judge of the stature of Justice Nugent can be dismissed, without fair hearing, what about a man or a woman on the street? Can we still call Lesotho a democracy where our liberties are protected and our judiciary is independent? No country in the world today wants to be seen as an illiberal democracy where leaders violate the Constitutions of their countries arbitrary.
It is an unfortunate truth that by unilaterally firing Justice Nugent, Lesotho has demonstrated characteristics of an illiberal democracy. Every democracy must uphold its national Constitution and not violate it.  Similarly, the judiciary must be extremely vigilant not to be party to any illegal process that serves to undermine its independence.

Dr Fako Likoti

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