Connect with us

Insight

Judge’s ouster an assault on judiciary

Published

on

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.

Advertisement

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

Advertisement

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”.

Advertisement

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

Advertisement

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

Advertisement
Advertisement

Insight

A wasted opportunity to reset

Published

on

The year 2024 is behind us now. It was a year in which we were told Basotho were 200 years old as a nation. The facts tell us differently. If we follow them, Basotho nation was 204 years old in 2024. Also, if we follow the facts, Basotho nation was established in Botha Bothe, not Thaba Bosiu.

None of this may matter very much but it must be known. Botha Bothe has been denied its rightful place as a place where the Basotho nation was formed.

Like an older man who is fond of younger girls, or an older woman who is fond of younger boys, we reduced our age mainly in order to suit the significance that has been accorded Thaba Bosiu at the expense of Basotho’s other mountain fortresses — for example, Mount Moorosi and Botha Bothe Mountain.

They say history is written by the victors, and the powerful. Until our current social order changes, what the powerful consider to be the truth will remain as it was given to us in 2024 — that, as a nation we were 200 years old in 2024, and that the Basotho nation emerged at their one and only fortress, Thaba Bosiu.

Advertisement

This story had to remain this way because too much political and financial investment has gone into Thaba Bosiu, and we cannot afford to change stories about it.

This article is not about quibbling about how old we are as a nation, and where the Basotho nation was formed. Rather the article is about what we achieved in 2004 in our celebration of 200 years of our nationhood.

Out of lack of any interest, or out of lacking any ideas, our politicians kept mum about what they would like to see the nation achieve as part of our celebrations. So, justifiably, they can tell us to bugger off, if we ask them whether they have anything to show from the 2024 celebrations. We cannot bother them about what we achieved because they never made any promises.

In November, 2024, a friend was asked at a public seminar: What lessons have we learnt about Basotho pre-colonial political leadership during our 200th anniversary celebrations?

In response, he made one of the most brilliant statements that can be made about what happened in Lesotho during 2024. He said, in 2024 all we did was, on the one hand, to be nostalgic about the good old past where political leaders (i.e. chiefs) respected their followers, communities shared what they had, and, within communities, human security was guaranteed everyone.

Advertisement

On the other hand, we continued to treat one another the way we always do: we continued to employ socio-economic systems—and to practise policies—that are responsible for socio-economic inequality in Lesotho, where many families, including children, go to bed hungry every day.

One of the things we should have done to celebrate 2024 years of our existence as a nation was to re-consider our adoption of systems and policies that leave many Basotho poor and hungry.

For having done none of this, as a nation, we remain with serious problems that need to be stated repeatedly because it seems that those in power do not get to see them in reality.

Being given just the numbers of hungry families, and being told, with satisfaction, that they are falling, will always be meaningless when you meet a hungry woman with a child on her back, and holding another by the hand—as we do in our villages—asking for food, or money to buy food.

In official statistics, she may be a single case that does not change the fact that government is succeeding in the distribution of food aid. That is not the way she may see things.

Advertisement

To her, she and her children are not part of some percentage—20%, 10%, 15%, etc.—that government may not have reached. She and her children are 100%, and more. They are not 20% hungry; they are more than 100% hungry.

Neither did the killing, the rape and abuse of children and the elderly stop in 2024, nor did we take the celebration of our nationhood as an opportunity to think about how to stop all this.

We are a deeply unequal society with very unacceptable indicators of human security. Action to address the welfare of the most vulnerable sections of society—women, children, the elderly—remains terribly inadequate.

Their lot remains poverty, hunger and fear for their lives.

In our celebrations of 200 years of our nationhood, perhaps one of the things we should have done is to commit ourselves to the formulation of a socio-economic system that secures the welfare of the most vulnerable sections of society.

Advertisement

Continue Reading

Insight

Down in the Dump: Conclusion

Published

on

I closed last week by recording the dreadful news that trashy Trump had been elected called to mind WB Yeats’s poem “The Second Coming.” This is the poem whose opening lines gave Chinua Achebe the phrase “things fall apart.”

Yeats observes “Things fall apart, the centre cannot hold / Mere anarchy is loosed upon the world.”

It was written in 1919 and controversially uses Christian imagery relating to the Apocalypse and the Second Coming to reflect on the atmosphere in Europe following the slaughter of the First World War and the devastating flu epidemic that followed this.

It also reflects on the Irish War of Independence against British rule.

Advertisement

In lines that I can now read as if applying to the recent American election, Yeats mourns: “The best lack all conviction, while the worst / Are full of passionate intensity.”

And then I can visualise Trump in the poem’s closing lines: “What rough beast is this, its hour come round at last, / Slouching towards Bethlehem to be born?”

Trump is certainly a rough beast and isn’t the choice of verb, slouching, just perfect? For a non-allegorical account of the threat posed by the Dump, I can’t do better than to quote (as I often do) that fine South African political journalist, Will Shoki. In his words: “Trump’s administration simply won’t care about Palestinians, about the DRC, about the Sudanese.

It will be indifferent to the plight of the downtrodden and the oppressed, who will be portrayed as weak and pathetic. And it will give carte blanche [that is, free rein] to despotism and tyranny everywhere.

Not even social media, that once revered third-space we associated with subversion and revolution in the first quarter of the 21st century can save us because Silicon Valley is in Trump’s back pocket.”

Advertisement

So what follows the triumph of the Dump? We can’t just sit down and moan and bemoan. In a more recent piece of hers than the one I quoted last week, Rebecca Solnit has observed: “Authoritarians like Trump love fear, defeatism, surrender. Do not give them what they want . . . We must lay up supplies of love, care, trust, community and resolve — so we may resist the storm.”

Katt Lissard tells me that on November 7th following the confirmation of the election result, in the daytime and well into the evening in Manhattan, New York, there was a large demonstration in support of the immigrants Trump despises.

And a recent piece by Natasha Lennard gives us courage in its title “The Answer to Trump’s Victory is Radical Action.”

So, my Basotho readers, how about the peaceful bearing of some placards in front of the US Embassy in Maseru? Because the Dump doesn’t like you guys and gals one little bit.

One last morsel. I had intended to end this piece with the above call to action, but can’t resist quoting the following comment from the New York Times of November 13th on Trump’s plans to appoint his ministers.

Advertisement

I’m not sure a satirical gibe was intended (the clue is in the repeated use of the word “defence”), but it made me guffaw nonetheless. “Trump will nominate Pete Hegseth, a Fox News host with no government experience, as his defence secretary. Hegseth has often defended Trump on TV.” You see, it’s all about the Dump.

  • Chris Dunton is a former Professor of English and Dean of Humanities at the National University of Lesotho.

 

Continue Reading

Insight

A question of personal gain

Published

on

Recently, an audio recording featuring the distressed MP for Thaba-Bosiu Constituency, Joseph Malebaleba, circulated on social media. The MP appears to have spent a sleepless night, struggling with the situation in which he and his associates from the Revolution for Prosperity (RFP) party were denied a school feeding tender valued at M250 million per annum.

In 2022, Lesotho’s political landscape underwent a significant shift with the emergence of the RFP led by some of the country’s wealthiest individuals. Among them was Samuel Ntsokoane Matekane, arguably one of the richest people in Lesotho, who took the helm as the party’s leader and ultimately, the Prime Minister of Lesotho.

The RFP’s victory in the general election raised eyebrows, and their subsequent actions have sparked concerns about the motivations behind their involvement in politics.

In an interview with an American broadcasting network just after he won the elections, Matekane made a striking statement, proclaiming that he would run Lesotho exactly as he runs his business.

Advertisement

At first glance, many thought he was joking, but as time has shown, his words were far from an idle threat. In the business world, the primary goal is to maximize profits, and it appears that the RFP is adopting a similar approach to governance.

Behind the scenes, alarming developments have been unfolding. A communication from an RFP WhatsApp group revealed a disturbing request from the Minister of Communications, Nthati Moorosi, who asked if anyone in the group had a construction business and could inbox her.

This raises questions about the RFP’s focus on using government resources to benefit their own business interests.

The government has been embroiled in a series of scandals that have raised serious concerns about the ethical conduct of its officials. Recent reports have revealed shocking incidents of misuse of public funds and conflicts of interest among key government figures.

Over the past two years, the RFP has been accused of awarding government contracts to companies affiliated with their members, further solidifying concerns about their self-serving agenda. For instance, vehicles purchased for the police were allegedly sourced from suppliers connected to a Minister’s son and MP.

Advertisement

The MP for Peka, Mohopoli Monokoane, was found to have hijacked fertiliser intended to support impoverished farmers, diverting crucial resources away from those in need for personal gain.

Such actions not only betray the trust of the public but also have a direct impact on the livelihoods of vulnerable communities. Monokoane appeared before the courts of law this week.

While farmers voice their concerns regarding fertiliser shortages, it seems that Bishop Teboho Ramela of St. Paul African Apostolic Church, who is also a businessman, is allegedly involved in a corrupt deal concerning a M10 million fertilizer allocation, benefiting from connections with wealthy individuals in government.

The procurement of fertiliser appears to be mired in controversy; recall that the Minister of Agriculture, Food Security and Nutrition, Thabo Mofosi, was also implicated in the M43 million tender.

The renovation of government buildings with elaborate lighting systems was contracted to a company owned by the son of an MP. The RFP’s enthusiasm for infrastructure development, specifically road construction and maintenance, is also tainted by self-interest, as they have companies capable of performing these tasks and supplying the necessary materials, such as asphalt.

Advertisement

Minister Moteane finds himself in a compromising situation regarding a lucrative M100 million airport tender that was awarded to his former company. Ministers have even gone so far as to award themselves ownership of diamond mines.

Meanwhile, the nation struggles with national identification and passport shortages, which according to my analysis the RFP seems hesitant to address until they can find a way to partner with an international company that will benefit their own interests.

The people of Lesotho are left wondering if their leaders are truly committed to serving the nation or simply lining their own pockets. As the RFP’s grip on power tightens, the consequences for Lesotho’s democracy and economy hang precariously in the balance.

It is imperative that citizens remain vigilant and demand transparency and accountability from their leaders, lest the nation slide further into an era of self-serving governance.

In conclusion, the RFP’s dominance has raised serious concerns about the motives behind their involvement in politics. The apparent prioritisation of personal profit over public welfare has sparked widespread disillusionment and mistrust among the population.

Advertisement

As Lesotho navigates this critical juncture, it is essential that its leaders are held accountable for their actions and that the nation’s best interests are placed above those of individuals.

Only through collective effort and a strong commitment to transparency and accountability can Lesotho ensure a brighter future for all its citizens.

Ramahooana Matlosa

Advertisement
Continue Reading
Advertisement

ADVERTISEMENT

Advertisement
Advertisement

Trending