Was emotional ruling about judiciary’s struggles necessary?
Publish date: 03 December 2019
Issue Number: 183
Diary: A Matter of Justice
Category: A Matter of Justice
A decision handed down by three judges of Lesotho’s Constitutional Court last week speaks of a Bench whose spirit is crushed. Apparently aware that the judiciary has lost the respect of the country’s people, the court says it sees ‘nothing but a bleak future’ ahead.
The final paragraph, headed ‘Epilogue’, must be one of the most despairing I have ever read in a judgment: ‘The endemic absolute lack of trust and of confidence in Lesotho in the judiciary and its being constantly labelled as politicised and incompetent is truly regrettable. It is a strange behaviour unknown in other countries of Africa where their judiciaries are a pride of their nations and where an independent judiciary is an integral part of their national independence. Embattled and demonised as corrupt and weak, the judiciary of Lesotho cannot discharge its functions under the Constitution and Lesotho shall for ever be a highly politicised pariah nation with nothing but a bleak future.’
Close watchers of Lesotho, its politics and its judiciary may feel that there is some truth in that sad appraisal of the situation. But in fact, the matter before the court hardly merited such soul-searching. Instead of 32 pages, the issue could have been dealt with in half that space and with none of the emotion, the despair and the anger that is now permanently recorded in the country’s law reports. Actually, there should never have been the need for a judgment in the matter at all.
True, Lesotho is highly politicised. And its two evenly-matched main political groupings regard the judiciary and its members as trophies worth fighting for. Each successive government aims to rid itself of the top judicial leaders appointed by the previous administration and replace them with judges perceived as sympathetic to their own cause. Often this is done by claiming a present incumbent is unfit for office and starting an impeachment process. Perhaps some judges do favour one party over another, but the politicians’ constant criticism of the judiciary, and the regularity of impeachment threats, dramatically reduces public confidence.
In this case, a high-profile political figure launched an action asking, in summary, that the court recommend an investigation to remove the Acting Chief Justice, order the appointment of an investigation into her fitness to hold office as a judge and her suspension pending the outcome.
Now here is the crucial fact. Three High Court judges were empanelled as a Constitutional Court to hear this application against the ACJ. In a properly functioning democracy with judges careful to respect the rule of law, this would not have happened. The three local High Court judges would not have been asked to sit in the matter; they certainly would not have accepted to do so. The procedure would have been to request the help of an ‘outside’ judge, in this case from another state.
Such an approach would not be a comment on the ability or integrity of the local judges. It would simply follow a long-established approach. The court presiding must be seen by everyone to be independent of the judge implicated in any litigation. And the way to make that obvious is for the matter to be heard by an outside judge, rather than a colleague, someone in the same division.
Here, however, the three local judges were empanelled to hear an impeachment application against their colleague and judicial superior, the ACJ. Then the Attorney-General and the ACJ brought an application for the three judges to recuse themselves, for an order that all other members of the Bench in Lesotho be similarly recused, and that an outside judge hear the application for her impeachment.
Having required argument in the matter – apparently it was not obvious to them that recusal was necessary – they agreed to stand down, saying their judgment would be given later. In their decision they could simply have quoted decisions from their own and other jurisdictions showing that it would be proper for the matter to be heard by an ‘outside’ judge. But instead, they beat around the bush, sounding defensive, hurt and angry.
They imply their integrity is being questioned. The Lesotho Bench ‘is not incompetent or disqualified to adjudicate in any matter regardless of how high profiled. We give a benefit of doubt to anyone … who wants judicial competent to suit his or her own prurient scheme. We stand firm under our judicial oath which rings clearly in our ears and in our conscience. Otherwise we stand ready to be impeached!’
There’s more defensiveness when they take exception to argument suggesting they are ‘incompetent’ to hear the matter: allegations of ‘incompetence’ are very serious, implying they are unfit to hold office. They therefore give the AG the ‘benefit of the doubt’, and assume he meant ‘disqualified’. ‘I have 22 years of judicial experience under my “black belt”. I will not be taken as incompetent by anyone,’ writes Judge Semapo Peete with the concurrence of the two other judges.
Among the facts he lists as ‘unique’ in the case is the existence of ‘some differences between the ACJ, the President of the Court of Appeal and the Prime Minister’ and ‘some very serious misunderstandings between the ACJ and some or most of the judges of the High Court’,
The main application seeks a ‘drastic’ outcome, namely the impeachment of the ACJ. ‘We (are) also aware that obviously a hue and cry shall go viral over the social media whether we recuse or decline to recuse.’
They declare they will recuse themselves, but then return once again to the AG’s argument and say it was ‘most unfair’ for him to say they were ‘incompetent’ to deal with the matter. Lesotho’s judiciary is ‘sadly inextricably embroiled in a political quagmire’ and it was ‘only proper that for the sake of public interest … we recuse ourselves but without being called “timid” or “cowardly” – or “incompetent”.’ They hope that their recusal ‘shall not open the floodgates for a deluge of recusal applications in every political case.’ ‘Prevailing distrust and lack of confidence in the judiciary in our country is totally bad, unBasotho and must be discouraged and deprecated (not) only for the sake of the judiciary of Lesotho for now but for future generations.’
There is no section of the judgment setting out the court’s order. But towards the end, commenting on the question of ‘institutional recusal’ of the whole High Court Bench, the three judges say, ‘(W)e truly find it difficult on principle to speak for other judges of the High Court because this would necessitate the sitting of the whole Bench of the High Court of Lesotho to determine institutional recusal which in turn would activate the “doctrine of necessity” and create a potential conundrum.’
A reader is left confused about the exact order of the court and whether the way has been left open to empanel other local High Court judges. Even more puzzling, however, are questions about the unnecessary avenues followed in the decision, the painful issues raised, the emotions displayed, the dire predictions about the future – and whether any of it was actually necessary, given the nature of the dispute.