Lay hands off judiciary, say judges

Lay hands off judiciary, say judges

MASERU – PRESSURE is pilling on the government to keep its paws off the judiciary. This after two more international organisations this week joined the calls on the government to stop interfering with the judiciary and threatening to fire Chief Justice Nthomeng Majara.

In a statement the Africa Judges and Jurists Forum (AJJF) and the International Commission of Jurists (ICJ) called on the government to “guarantee the independence of the judiciary and to immediately take all legal and administrative measures necessary to make the Court of Appeal function as an independent and impartial” apex court in the country.

The statement comes after the AJJF and ICJ concluded a five-day fact-finding mission to Lesotho last week. Last week the Southern African Chief Justice’ Forum issued an equally robust statement condemning the government’s interference in the judiciary. The AJJF/ICJ mission emphasised the importance of Lesotho authorities “ensuring that the constitutional and legal framework on the selection, appointment and tenure of judges and the actual practices conform to the international obligations of Lesotho pursuant to the international human rights treaties to which it is party, as well as other applicable international standards”.

“During our mission we were troubled to discover that the Court of Appeal has not sat in the past two of its scheduled sessions and with the current impasse we are concerned that it may not convene anytime soon,” said retired Justice Othman Chande, former Chief Justice of Tanzania.
He said they were disturbed that the Prime Minister Thomas Thabane has started impeachment proceedings against the Chief Justice.
Thabane accuses the Chief Justice of incompetence, negligence, and dereliction of duty. The Chief Justice has strenuously rejected the allegations and is suing to block the prime minister from pushing for her dismissal.

The mission noted that the AJJF and the ICJ have been concerned about the threats to judicial independence in Lesotho for years. It noted that some recommendations by an ICJ mission to Lesotho in 2013 have not been implemented. The ICJ report suggested dealing with the “structural issues to do with guaranteeing the independence of the judiciary at law and in practice”.

The mission said it was gravely concerned that the appointment and impeachment of the Chief Justice and the President of Court of Appeal “is made by the King on the singular advice of the Prime Minister”.  “These arrangements do not comport with international standards and give rise to the perception that the appointment of judicial officials and any impeachment action against them will be politically motivated.”

“This has also led to friction or strong perception of friction between the Executive and the Judiciary in a deeply polarised society.”
The mission noted that the appointment of the President of the Court of Appeal “has been subject to prolonged political dispute and litigation that has resulted in a leadership vacuum at the apex court that has made it dysfunctional”.

This, the mission said, has resulted in “all litigants who expect justice from the Court of Appeal have for years been waiting before they can get their matters resolved”.  “While the case challenging the appointment of an acting President of the Court of Appeal is presently set down for hearing at the High Court in the coming weeks, it is not clear that this adjudication will conclude the legal process and pave way for the appointment of the acting President of the Court of Appeal.”

The role of the Judicial Services Commission (JSC) in the appointment of High Court judges also got the mission’s notice. High Court judges are appointed by the King on the JSC’s advice. The JSC is chaired by the Chief Justice who presides over a panel made up of the Chairperson of the Public Service Commission, the Attorney General and one Judge.

“All these officials are effectively appointed by the Prime Minister or closely work with the Chief Justice, resulting in an appointment process of judges of the High Court that lacks transparency and is perceived as open to cronyism,” the mission said. The mission said it is also concerned that players in the judiciary are not fighting from one corner to defend the institution.

“It is important that the legal profession and the judiciary speak strongly in defence of independence of the judiciary, but currently the legal profession is deeply divided, distrustful and polarized,” said Retired Chief Justice Sakala of Zambia who was part of the mission.
“It is therefore important that a practice of regular bar-bench dialogue be initiated to reduce toxic relations that are being exploited to undermine judicial independence”.

It said it was worried that the broader recommendations of the SADC commission have not been wholly implemented.
“The country needs broad reforms including in the judicial sector, but these reforms have been threatened or at least slowed down significantly by the instability in the successive coalition governments that make it impossible for the reforms to be carried out when the country is in a constant electoral mode.”

The mission met the Chief Justice, Speaker of Parliament, Deputy Speaker, Clerk of Parliament, Minister of Justice, the Attorney General, Leader of Opposition and opposition members, High Court judges, Justice Mosito, academics, civil society, diplomats, the SADC Preventive Mission in the Kingdom of Lesotho (SAPMIL), lawyers and President of the Law Society.

Staff Reporter

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