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Who judges the Judges?



THERE is a lot of sloganeering about judicial independence, about how threatened it is from executive interference, about threats to it and loud proclamations about the need to defend it.
But there is hardly any discussion about judicial accountability and how the institution should gingerly be managed to sustain any given democratic society.
Understanding the proper context in which the rule of law operates requires the interrogation efficiency of all three branches of government including the judicial branch.
In this analysis, we shall endeavour to illustrate that if the judiciary can be a tool to fight oppressive governments and opposition to human rights abuses of all scales and forms, the institution can by the same token, wittingly or unwittingly, manipulate its position in such a way that the ultimate effect of its operations serve to frustrate and to render the state ungovernable and ultimately lead to the frustration of the people’s march towards their emancipation.

In illustrating our point, we have to go a step further to suggest that the parochialism surrounding judicial independence does not seem to admit the possibility that the administrators of the judiciary or the judges themselves do not bear the possibility of being ‘manipulated’ or ‘positioned’ or, at worst make blatant judicial errors or bear the potential of being equally tyrannical under the guise of their institutional shield.

We shall strive to illustrate our point even further by using a live example: the removal of a judge from judicial office generates more noise than the removal of a politician from high office.
Very little or no effort is made to look at the extent to which the judiciary discharges its mandate in this jurisdiction and there is no institutional oversight which is well-managed and well-staffed to put the errant judges to book for their misdeeds.

This is not to mention the fact that Lesotho’s Judicial Services Commission (JSC) is not representative enough to be given some credence of being open, transparent and institutionally potent for that matter. We shall commence our analysis by consistently referring to the concept of ‘professional self-determination’.
In interrogating the concept, we assert consistently that legal professionals, particularly judges, must be cognisant of their role in society and must, as a matter of necessity, avoid overstepping their bounds under the guise of the notion of judicial independence.

Judges are subjects of the law and must be reminded that judicial independence goes hand in glove with judicial accountability. We say so mainly because there has been a steady rise in judicial activism in various jurisdictions where judges have staged counter-revolutionary overtures under the guise of gavels and gowns.
Some sections of society and policy platforms have applauded such initiatives and stated that they are illustrious of judicial independence. We are minded to pick the gauntlet and suggest that it bears the potential of creating an unruly horse in the institution of the judiciary. But beyond that, it leads to the undermining of a democratic society and the rule of law.
There is an emerging trend of a notorious proclivity of judges to seize powers illegitimately in order to achieve results unjustified by the Constitution.

That arrangement has since trickled down to Lesotho’s superior courts where the legal principles which are otherwise foreign to Lesotho’s jurisprudence are forcefully imposed to Lesotho’s legal setting under the arrangement that allows Lesotho to import South African judicial services.
The judiciary is capable of playing an instrumental role in the collapse of government and to destroy the democratic political setting if left unchecked. The trend of using litigation and the utilization of courts of law to stifle the democratic process and to undermine legislative and executive authority is gradually gaining popularity.

We have observed and carefully followed with keen interest the recent decisions of The Constitutional Court of South Africa and more particularly, the latest decision where the judgement rendered the office of the National Director of Public Prosecutions (NDPP) vacant and set aside the appointment of Shaun Abrahams as the lead prosecutor.
The writing of judgements is not merely about the pronouncement of the verdict but equally an intellectual odyssey that requires rationalization. Yet of late the judgements aimed at reviewing decisions of the executive are not any different from speeches delivered by politicians themselves.

We have equally followed a pattern where civil society organizations have staged various litigations in the courts to challenge executive political authority.
We have heard often at times the romanticized notion that politicians are generally corrupt in their administration of the state and very much less has been said about judges who have the equal potential of not only being corrupt but also of being counter-revolutionary and tyrannical. One cannot help it but watch with a roving eye, the intended land reform program and the role that the so-called civil society shall play duly supported by judges who masquerade as politicians under the guise of ‘judicial activism’.

There is a growing trend which motivates the judiciary to resist political authority and this leads to the domino-effect of the judiciary becoming a policy-making institution instead of interpreting and applying the law. This translates into a judiciary that effectively usurps the power of political authority through the means that they could not otherwise achieve through the ballot.
Liberals, particularly those who run under the ‘veil’(if one was to use the word advisedly) of civil society organizations financed by western powers and are beholden to minority rights in South Africa are using judicial activism to achieve what they cannot win through the ballot.

The reality is that no state can be fully functional in an environment where judges resist executive political authority sanctioned under the constitution and hide under the guise of judiciary’s functional and institutional autonomy. The malady appears in all places where judges have the power of judicial review and override the decisions of legislatures and executives.
While conventional thinking might indeed help preserve the idea that the court’s decision-making should not be affected by outside influences, the best way to accomplish this goal is for judges to refrain from engaging in judicial activism and to use the very tools often utilized by political institutions to justify the decisions that they make to alter the social setting.

Judges in South Africa have been able to legitimize the utilization of cannabis under the ‘guise’ (we are using the word advisedly) of legal precedents and they have evenly endeavoured to justify same sex marriages without a referendum or a scientific public poll that endorses the legalization of such.

To interpret the Constitution – particularly the bill of rights, judicial activism comes in many forms which may also be inclusive of legalizing cannabis as has happened recently in South Africa and legitimizing homosexuality even in societies which are evidently not prepared to deal with the said transformations.
But from all courts of the so-called sophisticated and developed societies, judges have a duty to interpret and apply laws and the Constitution neutrally and without personal bias. This is essential to the rule of law and to the Constitution’s structural limits on government.

A quick and somewhat dangerous trend is emerging where populist judgements not any different from those harboured by politicians are rendered by judges and where they endeavour to play favourites by elevating obvious sympathy for otherwise socially reprehensible social conduct and sanctioning under the law ‘misdeeds’ which legislators would never sanction and branding them ‘minority rights’.

We are inclined to posit a rhetoric question: if the common law crime of sodomy is ‘unconstitutional’ in the South African jurisdiction can the same be said about The Kingdom of Lesotho?
Is this the type of question that must be answered by judges in courts of law or legislators? Instead of making an open attempt to examine South Africa’s constitutional jurisprudence with a desired end of magnifying the inherent dangers of the interplay of judicial activism in the South African context and its far-reaching consequences on The Kingdom we chose to restrict ourselves to the proposition that the judiciary should be acting within defined limits and avoid overstepping its constitutional bounds.

With all the views expressed above it is clear that the revival of Lesotho’s judiciary requires the interrogation of various areas few of which we shall illustrate just now.
Firstly, the trend of ‘institutionalized recusals’ of local judges over cases termed as high profile cases must be put to an immediate halt. If any judge in this jurisdiction undertook an oath to administer justice without fear or favour we find no reason why the so-called high profile cases should be an exception.

Secondly, the arrangement in which Lesotho’s judiciary has signed a memorandum of understanding for the donation of judicial services from South African bench has proven inimical over these past few years and has clearly distorted Lesotho’s constitutional law jurisprudence and one cannot help but make an observation of the institutional parochialism of the South African bench and about the romanticized concept of judicial independence and ultra-sensitive perceptions that the bench is timid and amenable to executive interference and that setting regrettably makes no mention of judicial accountability.

The South African bench is a platform for ‘judicial activism’ and the underlying dangers of such an approach is that if such judges are left unchecked they are and already have imported foreign law (specifically theirs) on the somewhat flawed understanding that South Africa’s constitution, in contrast to Lesotho’s, is by far more superior and progressive.
Frankly, the idea proposition that South Africa’s is a superior constitution requires further elaboration and testing we allow it to be abused by imported judges.

The fight for the ultimate control of The Court of Appeal of Lesotho by Basotho nationals is not necessarily about personalities or Justice Mosito as most pundits would want to believe but about fighting the geopolitics that came with ‘white South African judges’ domination of Lesotho’s apex court and the institutional arrogance that they displayed in their control of the said institution.
We note with apprehension South Africa’s dominance which was eliminated in the apex is now being replicated in the High Court under a contractual arrangement of ‘donation’ of ‘Bloemfontein Judges or Gauteng Judges’ is potentially destructive because the legal history and politics that shape Lesotho constitutional landscape and jurisprudence is materially dissimilar to those of South Africa.

In the ultimate analysis, our suggestion is that judges must place beforehand the dictates of the law above their romantic policy preferences. When they fail to do so, they trade the stable rule of law for the fickle rule of men.

They therefore arrogate to themselves a power which is not otherwise available to them but to the legislators and the executive. This may spark a potential power battle between the three critical arms of government.

l Advocate Rasekoai and Advocate Lephuthing are practising lawyers based in Maseru. The views they express are their own.

Monaheng Rasekoai & Christopher Lephuthing

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Lesotho’s own brandy



ROMA-“Go, eat your food with rejoicing, and drink your wine with a cheerful heart, for already the true God has found pleasure in your works,” so says the Big Book.

Driven by that divine, Mohapi Pule has gone a step further – by coming up with a new type of brandy – to make you merry.
The brandy, Mountain Spels Brandy, will make the heart of the dying man rejoice.
“The healthy nutrients in fruits that make brandy, end up in you when you drink it,” he said.

Pule studied nutrition at the National University of Lesotho.
His brandy is made by fermenting fruits into wine. The wine is then distilled into a brandy. It carries the flavour and the aroma of the original fruits.

The story began when Pule was born in Quthing, Mphaki. He was born to a hardworking mother who brew traditional beer like no other.
“She brew beer well before I was born. She is still making it to this day,” he said.

His passion for brewing was probably “born” even before he was born. Mothers have a hidden way of passing not just their looks but their passions to their children.

As he grew up, he found that he was still intertwined with his mom’s brewing business in one way or another.
“Mostly, I am expected to fetch water for the brewing process. That, I still do to this day when I visit home,” he says.
Two decades later, Pule found himself in the Roma Valley, doing BSc in Nutrition.

“At some point, I found that I had lost purpose in life. There was not a thing that I could say, well, I was passionate about this thing or that thing.”
That situation, of course, threw him into some serious soul-searching.
It brought him back to his roots.

“During this period, I recalled that when I was younger, I used to imagine helping my mom do the packaging of the beer she was making and helping distribute it countrywide,” he said.

From a young age, the issue of subsistence business didn’t appeal to him. But that imagination came and passed. Now here he was, worried that he might not amount to anything in life.

Then, boom! An idea came!
What if he produced an alcoholic drink?

He could have thought about anything to do as a business but, lo and behold! He thought about his mother’s passion!

One of the things he loves about alcoholic beverages is that they are popular.

“I haven’t seen products as popular as alcoholic drinks,” he said.
He might be wrong or right but the reality is, the rest of the world has for generations found delight in alcoholic beverages – some to the extent of overdoing it to their injury!

“Mabele khunoana ralitlhaku thabisa lihoho. Mabele u tsoa kae e le khale re u batla re sa u thole? Ueeeena mabeeeele!” (Loosely translated beer brewed from sorghum make men happy. We’ve been looking for you from afar, you sorghum. In short, this is a praise poem for the Sesotho sorghum brew).
But then came the most difficult part. Which specific beverages should he focus on and how would he do it?

He decided that he would focus on ciders. He realised that not many people in Lesotho were making ciders.

He started experimenting at home and realized how difficult the process was. He just couldn’t get it right. To worsen matters, he also did not have the right equipment.

But like most successful innovators, he just knew that he had to start his business right away.

Pule says he then learnt about other forms of beverages: the spirits. Spirits are very high in alcohol content. Here we are talking the likes of whiskey, vodka and brandy.

He was particularly interested in vodka. He went into one NUL laboratory and, with necessary permission, began testing a number of spirits and doing a lot of research about them.

He began saving some of the money he earned from the National Manpower Development Secretariat in the form of student allowance so he could buy equipment. Saving was not easy. The subsistence money was already not that much. Having to share it with a business was asking a little too much.

But Pule was so determined that he did it, bought equipment that allowed him to develop what he thought was “vodka”.

However, after buying the equipment he immediately realised that the equipment was to make brandy not vodka.

“Now I was forced to get into brandy by chance,” he said.
It was a mistake that he has never regretted having realised that there are very few individuals who were making brandy in Lesotho.

Pule had to throw himself fully into experiments. He read books about brandy production. He even enrolled for an online course on distillation.
In the end, he began to see some light.

“I began to feel some difference in the taste of my produce,” he said. “When I shared my produce with my lecturers, they were over the moon!”
With that encouragement, Pule began packaging his brandy and is now selling it to family and friends.

“My small equipment means that I can’t produce much. However, If I were to get bigger equipment, things would be much better.”

Own Correspondent

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Ready-to-cook vegetables



ROMA – ’MATUMANE Matela, a National University of Lesotho (NUL)-trained nutritionist, is an example of how a nutritionist should think and act.
Matela makes and sells ready-to-cook vegetables out of produce from her own farm or produce she preferably buys from local farms.
“When I make a dish, as a nutritionist, I make choices that ensure a typical package is packed with nutrition,” Matela said.

Today, we examine an interesting story of the lady who is determined to ensure that you eat healthy despite your busy schedule.
It started with her experiences in life.
She describes herself as an extremely busy woman.
She likes getting things done.
As the busy amongst us will say, the busier you become, the less you watch your diet.
She couldn’t escape the trap!

“My busy schedule meant that I ended up eating junk and I was gaining weight,” she said.
With time, she came to her senses.
As a nutritionist, she recalled that the best way to preach was to preach by example.
So, was she preaching what she practised?
Clearly, she wasn’t.
She had to find an option to maintain the busy schedule and eat healthy at the same time.

The beautiful thing about nutrition is that the healthiest foods are the closest to us: fruits and vegetables.
Some scientists even claim that our bodies seem to be designed to thrive on fruits and vegetables.
“Have you ever wondered why looking at a ripe raw peach on a tree is mouth-watering but looking at a fat cow isn’t?” asked one scientist.
Well, whether we were designed for fruits and vegetables or not, the truth is that they are good for our bodies.
That’s what good science tells us.

And we somehow “know it” too if you have heard about anything called intuition.
So one day she found herself increasingly eating fruits and vegetables.
It’s easier to change a religion than a diet, they say.
So it is commendable that she changed her diet at all.
“The idea was to chop as much vegetables as possible and put them in a fridge so that in future, I will just pull them out and cook.”
She wasn’t proposing something new.
Who amongst us doesn’t enjoy the convenience of just pulling up chopped frozen vegetables and cooking?

Little did she know that what she was doing was putting her on a path to a brilliant business.
It took a post on a social media to achieve just that.
“I took a pic of the chopped and packaged vegetables and posted them on my social media account. The reaction was swift. I began getting questions like, “how much?””
It immediately dawned on her that she could be sitting on a great business idea, after all.

So she gave it a try and started selling.
To her surprise, people started buying.
In fact, “I get orders for my products almost on a daily basis.”
That is how interested people really are.
This to an extent that her business now gets up to four irregular employees, she included, when the demand is high.
She said her training in Agriculture, Home Economics and Nutrition has helped her to give a thought into what she was doing.

For instance, where possible, she grows her own crops and sells them as first preference.
She has grown spinach, butternut, green pepper, onion, herbs and beans.
She is also in the process of renting more fields to grow more vegetables.
Then she empowers Basotho producers by requesting them to supply.
Going for foreign produce is the last resort.
Look at her packages and you realise something.
The “7 colours” proverb comes alive.

Those seven colours (several colours actually) may have been designed to appeal to your eyes but that is just the tip of the iceberg.
The colours of vegetables mean a lot in terms of nutrition.
Each colour gives you something different.
So, the more colours in one meal, the merrier.
To drive this home, let’s go a scientific route for a second.
Red, Blue and Purple: These vegetables contain substances that are good at reducing the risk of stroke, cancer and memory problems.
White: The likes of onion or garlic may help lower your risk of high blood pressure, high cholesterol, cancer and heart disease.

Orange and Yellow: Carrots immediately come to mind.
These vegetables contain substances called carotenoids which may help improve your immune system and help to improve the health of your eyes.
Basotho, it would appear, have long known a thing or two about the relationship between carrots and eyes.
Hence the famous saying, “o jele lihoete” (they ate carrots), often applied to good sportsmen or women with symbolically “good eyesight”.

Green: Green is life. Green vegetables come packed with chlorophyll, a chemical that scientists believe can boost your immune system, eliminate fungus in your body, clean your blood, lead to healthy intestines and give you boundless energy.
As a bonus, her Home Economics background is such that she is armed with a host of recipes for each of the packages she sells.
She has great dreams for the future.
“I want to see my products decorating the shelves of big supermarkets,” she said.
It’s time!

Own Correspondent

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A new, co-operative chain store



ROMA – ’MAKUENA Lesiea is spearheading the creation of a cooperative chain store that will sell Lesotho products only.
The store is being developed under the National University of Lesotho (NUL) Innovation Hub and it will be incubated by the Hub.
“Have you seen it? Basotho are producing like never before,” Lesiea said.
“However, their products are hard to see in the markets. We want to change all that.”

The store, she said, will open branches in all districts of Lesotho, starting from Maseru.
Visit any supermarket in Lesotho and check the products on the shelves.
You will be shocked to realise that, in general, just one percent of them are made in Lesotho.
The other 99 percent comes from elsewhere.
Is it because Basotho are not producing or can’t produce at all?

“Having worked directly with the NUL Innovation Hub and the Tsa Mahlale TV programme under the Hub, I have travelled the depth and breadth of Lesotho and I was amazed at the amount of work Basotho are doing,” she said.
What is the problem?
Basotho products are not given sufficient platforms to prove themselves.
“Credit where it is due, some shops are beginning to accept and sell Basotho products,” she said.

“However, they are barely making a dent because Basotho products, being at their infancy, cannot receive full attention unless by a store that is designed to give them full attention.”
Such a store doesn’t exist.

She said the idea is not to compete with any of the existing stores because “we are getting into a new territory altogether, we are addressing a different market”.
So listen to Lesiea as she presents some features of the store that will surely persuade you to join the bandwagon:

  1. Customer and producer confidence: The store, she said, will achieve two things.
    First, when they see masses of Lesotho-made products in one place, Basotho customers will slowly grow confidence in them.
    The confidence will shoot to the roof when the customers experience that many of the products made in Lesotho are already way ahead of foreign competitors in terms of quality.
    Secondly, the store will give Basotho producers an assurance that their products have, at least, one store that is willing to take them, dark or blue.
    More production will come from such assurance.
  2. Selling “everything”: The store will sell everything from fruits and vegetables to processed foodstuffs to clothing and building materials (if Thabure car will be in production by then, it will be on the shelves too).
    “Suppose what we want to sell is not locally made, we will never cross the border, any border, to find its equivalence. We will encourage Basotho to produce it until they do.”
  3. We mean business: whereas Basotho are beginning to produce, their products are still all over the place.
    You bump across them in some few willing stores, in expos and trade shows, or as being sold by individual resellers. Those are good efforts, but they are not enough. In fact, many in Lesotho have come to see producing and selling as being more of an art, a hobby, a therapy or a hustling than a business, “so we are seriously moving away from such a casual approach, we mean business this time around.”
  4. Ownership: So when you enter this store, you could be purchasing a product made by you in a store owned by you. What a difference!
  5. Reasonable standards: the store will only demand reasonable standards. As a struggling Mosotho, try taking your products to some of the local shops and you are, at worst, turned away without reason or, at best, given a long list of standards you must meet before they can take your product.
    “In our case, as long as your products are reasonably of good quality, you are in. NUL Innovation Hub is already testing many Basotho products. We won’t ignore quality, but we won’t use it as a way to prevent Basotho products from growing either.”
  6. A cooperative chainstore: From contributing as little as M50 per month, members will use a continuous financing model to ensure that the store doesn’t just end in Maseru but reaches the ten districts of Lesotho.
    Each branch will start at a medium scale in order to grow along with Basotho products. We won’t ask for investors to come from anywhere, “we will be investors ourselves.”
  7. An export launch pad. “We are often told to export our produce. The obvious question is, if you haven’t convinced your own people to consume your own products, how can you convince people in other lands to do so? Why should they take you seriously?”
    However, the store is not meant to be a local store forever.
    It will be a means by which we export our products to other countries in the future.
    When we export the store to Soweto, we export it along with products from Lesotho.
    Don’t say no because we have seen Chinese shops and Indian shops and, of course, South African shops, filled to the brim with Chinese products and Indian products and South African products in many countries.
    “If they can do it,” Lesiea ended, “so can we.”
    “Because if it is there in some of us, it is there in all of us.”

Own Correspondent

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