We need self-determination in legal fraternity

We need self-determination in legal fraternity

The country has seen and perhaps witnessed open debates on the status of the judiciary and by extension the legal fraternity in the Kingdom. These debates and confrontations for want of a better expression or phrase have led to a perception that the profession is at odds with itself.
The direct confrontation by the head of the judiciary – Madam Chief Justice – to a member of the executive and Minister of Law and Constitutional Affairs and the apparent and ongoing tensions emanating from the legal profession’s regulatory body – the Law Society of Lesotho.
The perceptions harboured by ordinary members of the public are to a large extent driven by melodrama and sensationalism with limited facts and background and so, I shall strive to depart from that route in suggesting a cause of the apparent explosive tensions between the executive and the judiciary.

I will perhaps steal a moment’s breath by attempting to engage on the issue perhaps in hindsight. I shall venture into my analysis by proposing that the constitutional imperative of judicial independence clearly insulates the judiciary from the slings and arrows of an angry and frustrated ordinary Basotho who complain about the state of this critical branch of government and the limited efficiency if none at all which has been laid bare in recent years.

It is thus unsurprising that in the past six years the legal profession and the judiciary have been in the news for all the wrong reasons. The cause of this state of affairs is arguably that most people in the country may have begun to question the notion whether legal professionals and members of the judiciary and all those involved in the administration of justice are ethical, honest and independent.

I shall engage in authorized theft of Adv. C.J. Lephuthing’s diagnosis of the problem which he terms as the ‘lack of professional self-determination.’ I will argue that the real reason behind the judiciary’s timidity to the executive is the fact that the profession is reactionary not proactive.
I will further suggest that the restoration of the dignity and integrity of the legal profession and its members be it in the public bar, bench or private practise lies in its consolidated effort to identify professional issues that require attention in order of priority and the eventual cultivation of a conducive platform for dialogue not a confrontational exchange of institutional imperatives.

There is a lot of sloganeering and romantic proclamations about judicial independence and the Constitution by legal scholars, politicians and members of the public about how threatened the judiciary is and how divided the legal profession is – about threats to the judiciary and loud proclamations about the need to defend it.

But there is hardly any discussion about judicial accountability and the dire need to make members of the judiciary accountable. I am inclined to argue that the notion of judicial independence is mutually inclusive of judicial accountability.

I am inclined to propose further that we should appreciate the fact that if members of the bench are insulated from interference by the political organs of the state absent their accountability, they can by the same token, wittingly or unwittingly, manipulate their position in such a way that the ultimate effect of the operations of the judiciary serves to frustrate the ordinary people’s march towards the total emancipation of our society.

On these grounds it is extremely important as legal professionals either in the formal sector or in the private sector that we define our place and role in relation to the task of emancipating the ordinary Basotho. Such an outlook or endeavour in my view leaves little room for sensational debates or melodrama which principally stem from a cult of personalities – a predominant force in the country’s public policy environment at the moment.
I shall with greatest respect pick the gauntlet from the Chief Justice’s speech where she openly warned against executive interference in the administration of the judiciary and perhaps retort in a few words by stating that the said view does not with respect admit the possibility that the judiciary itself has the potential to be ‘manipulated or positioned’ (as indeed has happened in some other jurisdictions), or that it could make serious and blatant policy or administrative errors which can leave a huge blemish in the dignity of the institution.

The real question that has to be debated is: how exactly can the legal profession and the judiciary restore the confidence that it enjoyed in the past years without compromising its role as a critical participant in Lesotho’s public policy environment?

With this view plainly revealed one needs to assert perhaps categorically that the institution of the judiciary can only be sustained if it is functional in a manner and environment which accommodates its accountability to other organs of the state. Judges, magistrates and local court presidents cannot and may not profess to be insulated from public scrutiny and accountability.

In understanding other core issues relating to the issues at play and the factors necessitating the apparent robust psychological revolutions which are at play in the legal profession, under the brand of what C. J. Lephuthing terms as ‘professional self-determination’ – Historical and social context has everything to do with the current state of Lesotho’s legal profession.

Today’s prevailing social and political values have been shaped by a variety of historical factors, including periods of colonialism, imperialism, and apartheid which directly affected the professional landscape in Lesotho – a country totally surrounded by South Africa.
The elite law firms in the country were and are still run by white South African legal practitioners who are by default direct beneficiaries of a system that automatically benefitted them to the exclusion of black legal professionals.

The firms had entrenched themselves in the government bureaucracy to such an extent that they were the sole providers of legal services in a landscape where the statistics of unemployed Basotho law graduates were and remain high to the present day. The reliance on white professionals was based on a belief that they were competent and very much more professional as compared to their Basotho counterparts.

The scepticism of professional competence of Basotho and the crypto-prejudice and talk of ‘standards’ and ‘merit’ dominated the landscape for quite some time and was clearly sustained by Basotho professional quislings who played minimal role in policy reforms geared towards emancipating Basotho legal professional but rather chose to sit on the other end criticising and sustaining a project which harboured white professional deference.
Their monopolisation of the profession had been so entrenched that even the legal profession was run at their whims and desires to such an extent that there was a serious tension that has been lingering over the years.

The domination of white South African professionals was further underscored by their domination of Lesotho’s apex court in which Basotho played minimal role and viewed the white South African judges with the highest degree of deference.

The perennial import of judicial and legal services clearly remains a contested debate and shall remain so until such time when the notion of professional self-determination by Basotho legal practitioners has been realised. The situation can best be explained by how the said elite firms are able to survive with only token Basotho legal practitioners, few or none of them who are partners, even when the market purports to value diversity and when the current climate touts the commercial value of “having local Basotho names on the letterhead.”

The white legal practitioners who run elite firms in the Kingdom, unsurprisingly endeavour to justify their approaches. They seek to explain away and rationalise their approach. The explanation offered is that Basotho under-representation in managerial roles can best be attributable to their shortcomings, including intellectual inferiority and deficits of human capital, interest, loyalty, and perseverance.

In view of these competing rational explanations, one might fairly conclude that there are both legitimate and illegitimate reasons for the dearth of local Basotho in South African-run commercial firms. In sum, a strategy is developed that sanctions institutional structures that superficially help conceal the discriminatory acts of individuals, preventing these firms from being reputed-much less proved-to be racist.

The model further posits that these firms are able to survive inspite of discriminatory behaviour and policies that disadvantage local Basotho legal practitioners. This in part is because none of the elite firms is achieving the vaunted integration and the business advantage purportedly associated with it.
The only meaningful way of moving the tide in the said sordid situation is if Basotho legal professionals consolidate their views and forge business alliances where they can hone their skills and expertise to compete.
But that is not something that can be achieved without policy reforms sanctioned by the government. The conventional approach of engaging in the process of selectively relying on white South African professionals in preference over Basotho practitioners at a cost of Basotho taxpayers’ money must be re-evaluated.

Significant changes of engaging local practitioners in government work have been noted of late and they must clearly be applauded but a lot more work needs to be put into the programme in order for the notion of professional self-determination to be realised.
One need not put a rest to ink and paper without emphasizing that professional self-determination as espoused by Adv. C. J. Lephuthing’s philosophical outlook and which is evenly sanctioned and advocated for by Adv.

Letuka Molati need not be viewed in the context of ‘race war’ but in the context of being a national programme geared towards sensitizing Basotho legal practitioners to navigate towards their professional growth.
It needs to be taken from a psychological frame of mind which begins a process of self-actualisation in the professional landscape and indeed as a necessary tool for the continued struggle against skewed systems which favour the chosen few in the form of race or elitism sanctioned by Basotho professional quislings.

We need to interrogate the reason why ‘white judges for hire’ inclusive of ‘white lawyers for hire’ are engaged whenever a critical policy issue is raised in a court of law by virtue of litigation.
This programme is nothing but an open challenge to the stereotype entrenched in the minds of some quarters of the legal profession to the effect that the challenges facing the legal profession in Lesotho have to do with the fallacious proposition that Basotho legal practitioners are sub-standard and lack the requisite professional acumen to participate meaningfully in the administration of justice.

It also seriously seeks to interrogate the motives of the white legal professionals in the public policy environment in the Kingdom. The reality is that the programme should never end because it is a critical policy issue that consistently has to be debated.

Monaheng S. Rasekoai

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