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Judges of the Superior Courts — the Court of Appeal and the High Court — Are Appointed by the King on the Advice of the Judicial Service Commission

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Judges of the Superior Courts — the Court of Appeal and the High Court — Are Appointed by the King on the Advice of the Judicial Service Commission Occasional Paper Number 1 July 2019 JUDICIAL REFORMS IN LESOTHO: A CASE FOR CHANGING THE BASE AND THE SUPERSTRUCTURE By Hoolo ‘Nyane © TRC, 2019 Occasional Paper Series TRC Publications The Transformation Resource Centre (TRC) publications play a significant role in shedding light and stimulating debate on various topical issues related to the work of the Centre. The aim of the TRC publications is to influence debate on current issues in government, private sector, non-governmental organisations, parastatals, and civic society organisations. The publications are also used by agents of social change as the source of references in their research work. The target audience for TRC publications are researchers, scholars, agents of social change, policy makers, politicians, academics, and students at institutions of higher learning. The TRC has five primary publication outputs: • Policy briefs and position papers • Occasional papers • Research reports • Litaba tsa Lesotho (a Sesotho-language community publication) • Work for Justice (quarterly journal) Policy Briefs/Position Papers are intended to INFORM, PROVOKE DEBATE ON and INFLUENCE policy. Therefore, they are targeted at policymakers, whether in government or business. They must be concise, providing a brief analysis of the issue at hand, and making policy recommendations. They must include an executive summary on the first page, and three or four policy recommendations, as well as an indication of who they are aimed at. Occasional Papers are intended as analytical pieces of variable length that explore particular issues. The focus is not overtly policy related, although this is not discouraged. Topics for the TRC occasional paper series can range from discussions of policy, economic, educational, and political issues. In this case, we may accept two types of occasional papers: argumentative or analytical. Research Reports are lengthier analytical papers, usually reflecting on and analysing the findings of field research, whether commissioned or undertaken by the TRC staff. The target audience is not necessarily policymakers, but rather the academic, think tank, and student communities. Soliciting Sources of TRC Publications The sources for the TRC occasional paper series are as diverse as its partners and targets; and depend on the theme and topics the publication wants to focus on. The sourcing for the publication shall be as follows: • Call for papers • Commissioned research • Assigned papers • Unsolicited pieces Information for Authors 1. The manuscript should be original, and not previously published. 2. All papers considered appropriate for publication are reviewed anonymously by at least two reviewers. 3. Authors submitting manuscripts for the TRC publication must agree to abide by the TRC publication requirements. 4. For more detailed guidelines, please contact the Editor at [email protected] or mmothae@trc. org.ls or visit the TRC website: www.trc.org.ls Disclaimer Opinions expressed in the TRC publications are the opinions and views of the authors, and do not represent the position of the Centre. About the Author Hoolo ‘Nyane is an Associate Professor and Head of Public Law and Environmental Law at the University of Limpopo. 2 Number 1 July 2019 List of Contents ABSTRACT..............................................................................................................................................4 INTRODUCTION.................................................................................................................................... 4 AN INSIGHT INTO THE HISTORY OF THE JUDICIARY IN LESOTHO........................................6 PROBLEMATISING THE THEORY (BASE) OF THE JUDICIAL SYSTEM IN LESOTHO...........9 CHANGING THE SUPERSTRUCTURE..............................................................................................13 Appointment and Dismissal of judges: balancing independence with accountability...... 13 Alignment of the Superior Courts.....................................................................................17 Lower Courts: Effacing the Colonial Legacy and Introducing a One Court System........21 CONCLUSION........................................................................................................................................ 23 ENDNOTES.............................................................................................................................................27 REFERENCES........................................................................................................................................28 3 Occasional Paper Series Abstract he judiciary in Lesotho has recently gone through a difficult period. It has experienced many challenges, ranging from, but not limited T to, perceptions of partiality, an improperly aligned court system, and precedence tussles between the Chief Justice and the President of the Court of Appeal. These problems have been simmering since independence in 1966, and were not addressed in 1993 when the current Constitution was adopted. The challenges became particularly brazen in 2012 when coalition politics started in earnest in the country. The situation is now dire and the general consensus is that the judiciary must be reformed. This interest in judicial reforms is often based on narrow issues related to the appointment and dismissal of judicial officers. This paper argues that the super-structural issues are important, but disregarding the broader theory (base) on which the judicial model is based may render the judicial reforms meaningless. The paper therefore makes a case for the reform of both the theory and the structure that comprise the judicial system in Lesotho. 1. INTRODUCTION While the problems affecting the judiciary in Lesotho are becoming apparent only now, the reality is that they have a long history. The judiciary has largely been an appendage of the executive since 1938, when the current judicial model was established in Lesotho and when the colonial masters fundamentally transformed the judiciary from its traditional model to a supposedly modern model. Traditionally, the judiciary formed an inviolable aspect of the powers of chieftainship. The shift from this traditional model was largely driven by colonial politics, where the colonial masters set out to destroy all existing structures. The effect was to remove judicial powers from the chiefs. The justification at the time was that the judiciary had to be separate from the other organs of state. The removal of the chiefs’ judicial power was confirmed by the High Court inR v Leteketa Rantletse.1 In this case a chief had ordered that a man be removed from the village for his continual offences. The man resisted the chief’s order and, in the process of resisting the order, he killed a messenger. His defence was that the chief’s order was unlawful since the chief no longer had the power to make orders. The High Court agreed. Chief Justice Harragin, as he then was, explained the transition that was brought about by the 1938 judicial reforms as follows: 4 Number 1 July 2019 I do sympathise to some extent with the Chief in this case, because there is not the slightest doubt that before 1938, the Chief was the Court, but since then he has only become the senior member of it and he omitted what no doubt was to him an entirely unnecessary step in putting the matter before the Court. ... I also think that Chief Matlere, wrong though he may be in law, was only carrying out what no doubt for a number of years every Chief has done, and I can only say that I hope this case will bring home to the Chiefs of this Territory that their authority to take drastic action does not lie in themselves, but in the Courts of the Territory, and that care should be taken in future to see that the letter of the law is carried out (p 228). Ironically, instead of granting the country a truly separate and independent judiciary, the 1938 reforms removed judicial functions from the chiefs and bestowed them on the colonial administration. The judiciary almost became an appendage of the executive (Mahao, 2005). For a substantial part of the colonial period, the judiciary in Lesotho was an extension of the executive. When the country became independent in 1966, the legacy of an executive- based judiciary endured. When the independence constitutional design was toppled in 1970, the judiciary moved even closer to the executive, and was seen as very instrumental in clothing the coup-based government of the time with legitimacy. When the country returned to constitutional democracy in 1993, the theory (base) and the structure (superstructure) of the judiciary remained the same. In fact, the 1966 design was reinstated mutatis mutandis. Since 1993, the executive has essentially been having a free rein on the judiciary. Since the country was basically a one-party dominated politics, the problem remained dormant and largely unseen. The problem was exposed in 2012 when the country transitioned from one- party politics to coalition politics. As the saying goes: the fish starts rotting from the head. The first thing the government did in 2012 was to seek to replace the heads of both superior courts – the High Court and the Court of Appeal. Since the constitutional design imposes virtually no restraints on the executive in relation to the judiciary, the installation of new judicial leaders occurred with relative ease. Members of the public started to see the problems in the relationship between the executive and the judiciary in
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