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 Publications

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About the Author Hoolo ‘Nyane is an Associate Professor and Head of Public Law and Environmental Law at the University of Limpopo.

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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

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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:

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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 Lesotho. A high turnover of members of the executive since 2012 had a direct bearing on the stability and independence of the judiciary. There was renewed interest in the independence of the judiciary.

This paper argues that, in the majority of cases, the conversation about the changes in the judiciary is about the superstructure. The conversation is often limited to the Judicial Service Commission as the appointing structure of the judiciary and, to some extent, the realignment of the courts and their leadership. These superstructural changes are important, but they may not

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endure if the underlying theory (base) is not changed. This paper seeks to demonstrate how British-based judicial theory and the inter-branch relationship model are responsible for the control that the executive exerts on the judiciary. As a result, the judiciary cannot remain resilient in times of political turmoil. The paper uses the Marxian base–superstructure model to demonstrate that the base (theory) determines the superstructure.

2. AN INSIGHT INTO THE HISTORY OF THE JUDICIARY IN LESOTHO

The most convenient starting point for tracing the history of the current judicial system in Lesotho is 1938, when the colonial administration started to implement the recommendations of the Pim Report of 1935 (Pim, 1935). The main thrust of this report’s recommendations was that the country must move away from the traditional court system towards a modern system. The reforms saw widespread changes, which included the enactment of the new High Court Proclamation, the new Criminal Procedure and Evidence Act, and the Subordinate and Native Courts proclamations. These reforms occurred in all three High Commission territories, namely Bechuanaland, Basutoland and Swaziland (Forster, 1981). According to Crawford:

The High Courts of the three countries were staffed by a single judge shared between them, who was also [a] legal adviser to the High Commissioner until 1952 and was thus stationed wherever the High Commissioner was in residence. After 1952 the posts of legal adviser and judge were separated and the Chief Justice of the three countries was stationed in Maseru (Crawford, 1970: 77).

The reforms were profound and almost the entire judicial and legal system was overhauled. Mainly, the reforms actualised the legal duality that commenced upon the re-annexation of Lesotho by Britain in 1884. The joint Court of Appeal was established later in 1954. The courts were mainly located within the office of the Resident Commissioner, as initially conceptualised during re-annexation. The infamous Proclamation 2B of 1884 provided that:

1. The Resident Commissioner is hereby empowered and authorized to hold a Court and to exercise jurisdiction in and adjudicate upon all causes, suits and actions whatsoever, civil or criminal, within the said territory as the said Resident Commissioner may from time to time appoint.

2. It shall be lawful for any Assistant Commissioner duly appointed for the said territory to hold a Court at such place or places as shall be fixed and to exercise such jurisdiction as shall be defined in and by his commission.

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Thus, it was part of the embedded culture of the colonial administration to house the judiciary within the operational sphere of the executive (Crawford, 1969). When the Court of Appeal was established in 1954, the High Court Proclamation of 1938 was also amended,2 but the judges of both superior courts were still appointed by the colonial administration. The structure of both superior courts remained unaltered under the 1959 Constitution, and even survived the transitional 1965 Constitution and the 1966 Constitution. The 1966 Constitution established a bifurcated appointment system for the judicial leaders (the Chief Justice and the President of the Court of Appeal) and other judges. The leaders were appointed by the King on the advice of the Prime Minister, while other judges were appointed by the King on the advice of the Judicial Service Commission. The Judicial Service Commission was composed of (a) the Chief Justice as the chairperson, (b) the chairman of the Public Service Commission, and (c) ‘a member who shall be appointed by the King acting in accordance with the advice of Chief Justice, from amongst persons who hold or have held high judicial office’. Clearly, while an attempt was made to create an independent judicial appointing body with a view to ameliorating direct executive influence on the appointment process, the Commission was overtly ill-suited to that purpose, because it still comprised surrogates of the executive; it was too thin to absorb the executive influence on the judiciary. Its mandate was to appoint judicial officers and to discipline them.

The new High Court Act was enacted in 1967 in terms of the new Constitution.3 The independence Constitution retained the Judicial Committee of the Privy Council. This was very surprising because other former British colonies in Africa, such as Tanzania, Ghana, Uganda, Nigeria, Zambia and Malawi, jettisoned the Committee as their apex court upon the attainment of independence (Poulter, 1970). In 1970, when the independence Constitution was suspended, the government also enacted the Court of Appeal and High Court Order,4 thereby abolishing appeals to the Judicial Committee of the Privy Council. The government was clearly concerned that, should there be cases related to the usurpation of power, the extra-territorial Privy Council might rule against the usurping government, as it had done in Southern Rhodesia in 1965. Ian Smith had unilaterally declared the independence of Southern Rhodesia from Britain, and the Privy Council refused to legitimise Smith’s usurpation of power (Marshall, 1968). In Lesotho, the government enacted the new Court of Appeal Order, which established the Court of Appeal as the final arbiter on civil and criminal matters. Indeed, the strategy worked because in all the coup-related cases that were heard thereafter the courts invoked the outmoded Kelsenian theory of revolutions to consistently legitimise the government.5 The 1970 Order was abolished in 1978 by the Court of Appeal Act 8 of 1978.

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When the country returned to constitutional democracy in 1993, under the ‘new Constitution’, the fundamental judicial structure introduced by the independence Constitution was reinstated. The appointment processes and court structures became a mirror image of the independence constitutional design. As noted in the foregoing discussion, there is a direct nexus between the pre-colonial judiciary and the post-independence judiciary and, rather surprisingly, the modern-day judiciary in Lesotho. Two colonial legacies are still stubbornly extant under the modern-day design. The first one is the strong relationship between the executive and the judiciary. The colonial administration made it clear that the judiciary was part of the executive. The tradition was unequivocally clarified in an Order in Council of 1910 that stated the following:

Now, therefore, His Majesty, by virtue and in exercise of the powers on this behalf by the Foreign Tribunals Evidence Act, 1856, and the Evidence by Commission Act, 1859, in His Majesty vested, is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, that the Resident Commissioner, as judge of the Court of the Resident Commissioner in Basutoland, shall be a judge having authority under the said Acts. (emphasis added)

Successive constitutional orders, to date, have not succeeded to outgrow this injunction.

The second legacy is the arbitrary appointment of expatriate judges and senior lawyers to preside in the Lesotho courts. In the run-up to independence, all the judicial officers were expatriates, either from Britain or South Africa. The first locals appointed to the High Court were Justice Mapetla and Justice Mofokeng, in 1973 and 1975 respectively (Maqutu, 2006). While the High Court is now fully localised, the Court of Appeal still remains woefully reliant on expatriate judges. Justice Ramodibedi was appointed as the first local judge of the Court of Appeal only in 2002, and he was appointed as the first local President of the Court in 2008. Since Ramodibedi’s appointment to the helm of the apex court, more local judges have been appointed. Nevertheless, the Court of Appeal is still largely staffed by expatriates. This practice is unusual in modern-day Africa; it is mainly a leftover practice of the former High Commissioner’s territories of Botswana, Lesotho and Swaziland. In Lesotho, the appointment of these expatriate judges has always been controversial. They are often arbitrarily appointed to preside over certain high-profile cases, using obscure and shady processes. The claim is made that they are competent and detached from the heated conflicts of the day. However, the way in which they are

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appointed clearly clouds any notion of competence and independence. In fact, they have been crudely described as ‘hired guns … a cabal of judges who are appointed through a murky process; working through an old-boys club’ (Freedom House, 2011: 40). Their appointment and the way in which they work has been described by one anonymous respondent to the Freedom House Report (2011) as follows:

Despite the fact that they are part-time, the reasoning behind their judgments – maybe they are more professional or more trained than our local judges … is superb. At the end of the day they are not brave enough to bite the hand of the executive. They have not said the government is wrong on a serious constitutional issue. It is the manner by which these judges get appointed … we are just told that one more judge is appointed. There is no process of justifying the system of appointment … Expatriate judge appointment is very arbitrary. It is just a friend advising a friend about a friend. Now the Court of Appeal is sitting we just see new faces and we don’t know when they came or how they came (Freedom House, 2011: 40).

These two legacies have coalesced to undermine any efforts to modernise the judiciary in Lesotho.

3. PROBLEMATISING THE THEORY (BASE) OF THE JUDICIAL SYSTEM IN LESOTHO

One handicap of the judiciary in Lesotho is the theory on which it is based. The theoretical framework within which the judiciary operates in Lesotho is located within broader British constitutional theory. As Maqutu J stated in Law Society of Lesotho v Ramodibedi:6

It seems to me that the present constitutional dispensation is a continuation of a tradition that Lesotho has inherited from Britain. Time and time again when constitutional problems arise Britain is our first reference point (para 7).

Despite the notion of constitutional supremacy espoused in s 2 of the Constitution, the two British constitutional doctrines still seem to be extant and inform the inter-branch relationship between the three major branches of government in Lesotho: the legislature, the judiciary and the executive. The two doctrines are executive dominance (prerogative) and legislative omnipotence (supremacy). The courts of law in Lesotho are entangled within these two antique theories. The notion of parliamentary sovereignty is known for its resistance to any check on the power of parliament which permeates almost all aspects of government power. The effects of parliamentary sovereignty are described thus by Allen and Thomson (2008):

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In some countries … the judges are permitted to review legislation in order to establish whether it complies with the … constitution. In the United Kingdom, the absence of a written constitution with the status of a high law and the doctrine of parliamentary supremacy prevent the judge from exercising this role (2008: 541).

Under the Westminster-based models, the court’s power of review is limited to the way in which the power conferred by Parliament is exercised, otherwise known as the doctrine of ultra vires (Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903; Hoexter, 2012). The courts have a very narrow remit, which is to search for and identify the ‘intention of parliament’. In Lesotho, this approach was controversially confirmed by the High Court inKhaketla v Honourable Prime Minister7 and Tsang v Minister of Foreign Affairs.8 In the Tsang case, the High Court, rather bizarrely, opined that ‘[t]he law of Lesotho is the same as the law of England and Republic of South Africa. An Act of Parliament is supreme. Once it has been properly passed by the Military Council the courts must give effect to it.’ The position is described thus by Dugard (1987: 497):

Judges… adopted the sharp distinction between the legislative function and the judicial function inherent in the positivist, or command, theory of law, and regard it as their duty solely to analyze, interpret and give effect to the will of Parliament.

Not only parliamentary supremacy still casts its theoretical shadows over the judiciary in Lesotho; so does the doctrine of executive (royal) prerogative. In terms of this doctrine, the appointment of judges is a royal prerogative that can be exercised on advice. The prerogative is best captured by the leading English constitutional law scholar Jennings (1959: 453) as follows:

The appointment of puisne judges of the High Court rests with the Lord Chancellor … The practice which Lord Brougham followed was to take the King’s pleasure and then to inform the Prime Minister … Other superior judges, including the Lords of Appeal, the Lords Justices, the Lord Chief Justice, the Master of the Rolls, … are appointed by the Prime Minister. The Prime Minister usually consults the Lord Chancellor. Political considerations are not, however, always excluded. (emphasis added)

Bradley and Ewing (1997) confirm the position that judicial appointments in the United Kingdom are a matter for the executive. According to the authors, ‘the Queen’s judges are appointed on the advice of the Queen’s ministers. There is no formal machinery, such as a Judicial Service Commission, to insulate judicial appointments from executive control’ (1997: 414). The model of separating senior judicial appointments from other appointments

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is also of British origin. In Britain, the appointments to the House of Lords and to the most senior judicial posts are made by the Crown on the advice of the Lord Chancellor (Bradley and Ewing, 1997).

The doctrine of royal prerogative dates back to the classical era of monarchical absolutism and it has, in contemporary constitutional designs, developed into executive prerogative (Poole, 2010). In the modern-day Westminster model, the executive continues to enjoy the erstwhile royal prerogatives, like judicial appointments and removals. It is therefore not difficult to immediately identify the British theoretical conceptions that manifest themselves in the judicial system in Lesotho. The Judicial Service Commission in Lesotho was never intended to be a meaningful appointing authority nor an authority on judicial affairs. The judiciary in Lesotho, in keeping with the British convention, is executive based, both in form and substance. The structure of the judiciary, both the superior and subordinate courts (including the native courts), and the appointment of judges and judicial leaders are predominantly executive functions.

Furthermore, because of its fixation with the British model, the judiciary in Lesotho is generally weak in relation to the other branches, which is in direct contrast with the global pattern. This global pattern has restored immense powers to the judiciary in an unprecedented manner. As Kelemen (2013) pointedly argues, there has been a global movement ‘away from traditional notions of parliamentary supremacy towards models of democracy in which constitutional courts have the power of judicial review.’ This global move towards stronger judiciaries is called ‘judicialism’ or the ‘judicialisation of politics’ (Hirshl, 2008; Sweet, 2000; T Vallinder, 1994) and emerged recently, riding on the ascendancy of liberal constitutionalism, a notion that emphasises the limitation of the powers of various government departments (Amissah, 1986). All its facets – the separation of powers, respect for human rights, the rule of law and judicial independence – have coalesced to limit the operational space of the political departments of government in favour of the judiciary (Vile, 1998). In this coalition of liberal concepts, (human) rights discourse has arguably emerged as instrumental for the ascendancy of judicialism. Even on occasions where the criticism of judicialism seems appealing, the phenomenon of judicialism normally derives popular legitimacy from the rights discourse. In Fose v Minister of Safety and Security,9 the Constitutional Court of South Africa boldly stated that:

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[C]ourts have a wide range of powers at their disposal to ensure that the Constitution is upheld … How they should exercise those powers depends on the circumstances of each particular case. Here due regard must be paid to the roles of the Legislature and the Executive in a democracy. What must be made clear, however, is that when it is appropriate to do so, Courts may — and, if need be, must — use their wide powers to make orders that affect policy as well as legislation. (emphasis added)

The justification for judicialism applies at two levels — the political level and the legal level. At the political level, the upsurge of judicialism can be attributed to the fall of parliamentary sovereignty and executive prerogative which had, in many cases, become instruments of political repression. Legally, the justification for judicialism is that it is an inevitable consequence of the new constitutional design premised on strong judicial review, judicial independence, the rule of law and legality. These principles have reinvigorated judicial activism to such an extent that today there is virtually no aspect that is immune from judicial scrutiny (Law and Versteeg, 2011). However, the judiciary in Lesotho is still trapped in the old notions of deference and passivity. This passive approach was recently confirmed by the decision of the Constitutional Court in Transformation Resource Centre v Speaker of the National Assembly, where the Court said:

This brings me to [the applicants’] second proposition … that the Standing Orders of the National Assembly … provide for peremptory procedural requirement for public participation … It rests on the fallacy that the internal rules of parliament made pursuant to section 81(1) have constitutional force and, therefore any irregularity in following them is violation of a peremptory constitutional procedure. This proposition raises issues which have implication for the separation of powers and the jurisdiction of courts to enforce internal rules of parliament (paras 20 and 21).

This fear of the courts in Lesotho in relation to the other two political branches can largely be attributed to the old judicial orientation, which is clearly not aligned with contemporary patterns in the inter-branch relationship. It would seem, therefore, that the judiciary in Lesotho has a weak theoretical and infrastructural framework, which is unable to counterbalance the other two political branches. Apart from the already weak Constitutional Court, the Constitution provides for a weak Bill of Rights, weak constitutional review remedies, and so on. A strong Bill of Rights and strong constitutional review remedies are the global drivers of strong judicialism. Therefore, the judicial reforms will have to start by first reconfiguring the broader theory underwriting the inter-branch relationship. This will call for the courage to replace Westminster as the animating model of the inter-branch relationship with the local model, which comprises the specific national lessons of the country together with modern constitutional patterns.

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4. CHANGING THE SUPERSTRUCTURE

4.1 Appointment and Dismissal of Judges: Balancing Independence with Accountability

An area that has dominated conversations about the judiciary in Lesotho is the appointment and removal of judicial officers. This subject has come to the fore because of the recent spate of removals of senior judicial officers, namely, the Chief Justice and the President of the Court of Appeal. The ease with which the executive has been able to remove these judicial leaders has generated mixed reactions about security of tenure — one of the hallmarks of judicial independence — in Lesotho. The appointment of judicial officers in Lesotho has three components: the appointment of judicial leaders, the appointment of other judges, and the appointment of other judicial officers. Judicial leaders – the Chief Justice and the President of the Court of Appeal — are appointed by the King in accordance with the advice of the Prime Minister. In effect, it is the Prime Minister (the executive) who appoints the judicial leaders. This practice, as demonstrated above, is a legacy from England. This power of the Prime Minister had not been overtly problematic since 1993 but became controversial after 2012.

The 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. It appears that, in accordance with convention, the King may not refuse the advice of either the Prime Minister or the Judicial Service Commission in relation to the appointment of judges.

Judicial officers of the lower courts, the third category, are appointed by the Judicial Service Commission without the involvement of either the Prime Minister or the King. These appointments are the exclusive responsibility of the Judicial Service Commission.

The Judicial Service Commission thus features predominantly in the appointment of two categories of judicial officers — the puisne judges of the superior courts and the judicial officers of the lower (subordinate) courts. Therefore, it is little wonder that the Commission has dominated contemporary debates about the appointment of judges in particular and judicial reforms in general. The 1993 Constitution is the mirror image of the 1966 Constitution in relation to the structure and the functions of the Judicial Service Commission. The Commission comprises just four people: the Chief Justice, the Attorney-General, the chairperson of the Public

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Service Commission and a judge appointed by the Chief Justice. Its main function is to appoint the categories of judicial officers identified above and to exercise disciplinary powers over them.

The primary issue relating to the Judicial Service Commission in Lesotho is its composition. There is a general consensus that the Commission must be retained, but its structure must be reformed in order to make it fit for purpose. Judicial Service Commissions or Councils are a widespread phenomenon globally (Harris, 1993). About 60% of the judicial systems of the world have a Judicial Service Commission of one form or the other (Garoupa & Ginsburg, 2009). Judicial Service Commissions were created to assume the power that originally belonged to the sovereign, namely, the power to appoint judges, who served at the sovereign’s pleasure. When the powers of the sovereign were largely transferred to the elected executive, it became apparent that the judiciary had to be shielded from interference by the executive, but at the same time had to be accountable. Hence, the main functions of Judicial Service Commissions or Councils throughout the world are to shield judicial appointments and removals from executive influence and also to ensure accountability. These functions are fairly well established and common to many systems. However, the models of Judicial Service Commissions vary immensely. The two types of Judicial Service Commissions are those that have strong executive representation and those with weak executive representation. A commission has strong executive representation when the majority of its members represent the executive in one way or the other. A commission is regarded as having weak executive representation when the executive does not constitute a majority of the commission. The Judicial Service Commission of Lesotho seems to fall into the first category: the Chief Justice, the Attorney-General and the chairperson of Public Service Commission all owe their positions to the executive in some way.

In an attempt to standardise the models of Judicial Service Commissions in Commonwealth countries, the Commonwealth Lawyers’ Association, the Commonwealth Legal Education Association and the Commonwealth Magistrates’ and Judges’ Association have jointly developed the ‘model clause’ for Judicial Service Commissions (Commonwealth Secretariat, 2017). According to the model clause, the Commissions are regarded as standard if they comprise: (a) a chairperson who shall be the Chief Justice; (b) the President of the Court of Appeal, (c) two other members of the senior judiciary designated by the Chief Justice; (d) a Chief Magistrate; (e) two other practising members of the legal profession; (f) a teacher of

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law and; (h) five other lay members (from civil society). This model may be recommended for Lesotho, with the small modification that the Attorney- General may be retained as the only representative of the executive in the Commission. Lesotho has had very negative experiences with the involvement of the executive in judicial appointments, and the involvement of the executive must therefore be minimised.

Another weakness with the Lesotho model of appointment is that merit is not a constitutional requirement for the appointment of judicial officers. This has led to serious problems of incompetence in the judicial service. The ‘model clause’ provides that:

The Commission shall select candidates for judicial office, according to published criteria including: intellectual capacity; integrity and independence; judgement; objectivity; an ability to understand and deal fairly with all persons and communities served by the Courts; authority and communication skills; and efficiency. The Commission shall give appropriate consideration to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination. Once selected the Commission shall recommend the appointment of the selected Judges to the [Head of State] who shall accept the recommendation.

Another aspect that has generated a lot of ire in Lesotho is the disciplining and removal of judicial officers. The Constitution has a very weak framework for disciplining judges, and there is no statutory framework governing the conduct of judicial officers. The statutes that regulate the various courts, like the Court of Appeal Act, the High Court Act and the Subordinate Courts Act, do not necessarily deal with the conduct of judicial officers; they are structuralist in nature. The Constitution provides minimally for some semblance of standards of conduct for judges of the superior courts. There are two grounds upon which a disciplinary process may be initiated against a judge of the Court of Appeal or the High Court, namely, misconduct and the inability to perform. Section 121(3) of the Constitution provides that:

The Chief Justice and any other judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.

Section 125(3) of the Constitution applies similarly to judges of the Court of Appeal. The Judicial Service Commission’s lack of involvement in the disciplining of judicial leaders and judges of the superior courts in general is very strange. The Constitution provides that the Prime Minister initiates the

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disciplinary process for judicial leaders (the Chief Justice and the President of the Court of Appeal). The Chief Justice or the President of the Court of Appeal must initiate the disciplinary process for other judges, depending on whether the judge concerned is of the High Court or the Court of Appeal. The Judicial Service Commission deals only with the disciplining of judicial officers of the lower courts. Strangely, the standard of conduct for these judicial officers is not provided for in the Constitution.

Since 1993, a sitting judge — either of the High Court or the Court of Appeal — has not appeared before a disciplinary tribunal for violating the standards provided in the Constitution. However, since 2012, two Presidents of the Court of Appeal have appeared before disciplinary tribunals. In 2013 Justice Ramodibedi faced several charges of misconduct. A tribunal was appointed to investigate him. He unsuccessfully challenged the appointment of the tribunal in court. When his court challenge failed, he resigned. Although the Prime Minister had fabricated the charges of misconduct against Ramodibedi, the fact of the matter was that the Prime Minister wanted Ramodibedi to resign and, when Ramodibedi refused to resign, the Prime Minister exploited the weak constitutional framework for the protection of judicial independence and fabricated the misconduct charges (‘Nyane, 2016). Justice Mosito, Ramodibedi’s successor, had the same experience. Mosito was appointed in 2015 during the electoral period (‘Nyane, 2015). The opposition raised serious concerns about the timing of his appointment, but the Prime Minister went ahead nevertheless. After the election, the opposition became the government, and immediately set out to remove Mosito. Like the government that came before them, the government fabricated charges of misconduct related to alleged tax offences. The truth of the matter was that the government did not want Mosito as the President of the Court of Appeal.

In 2019, a similar scenario occurred. In February 2019, the ruling party, All Basotho Convention (ABC), held an elective conference. At the conference, the faction apparently aligned to the leader of the party and the Prime Minister lost the election. The Prime Minister had made it clear that he did not like the newly elected committee, and his faction launched a court application in a bid to nullify the election. In the High Court the matter was heard by Acting Chief Justice Mahase. The Chief Justice kept postponing the matter repeatedly until the applicants sought the intervention of the Court of Appeal. The Court of Appeal decided to remove the case from the Chief Justice and ordered that the matter be heard by a different judge.10 When the matter was heard by a different panel of judges, the faction aligned to

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the Prime Minister lost the application, and the newly elected committee was confirmed. Clearly, the Prime Minister and leader of the party was unhappy with the outcome. He thereafter wrote a letter to the President of the Court of Appeal, Justice Mosito, asking him to show cause why he should not be suspended pending the investigation into his competence to hold the office of the President of the Court of Appeal, because of the manner in which he handled the ABC case. In his letter the Prime Minister said:

a) You made an order in recent case of ABC v Lehana and Other that the matter be heard by a different judge despite the same matter being part of heard in the High Court. b) You seem to be turning a blind eye to the flouting of the rules of the High Court by some legal practitioners to the detriment and the smooth running of the administration of justice. On the basis of the above-going (sic) I found it imperative on me as the Head of Government of the Kingdom of Lesotho to come to the rescue and preserve the reputation of the judiciary ... You are hereby directed to show cause why I may not recommend that you be suspended from your office, in terms of section 125(7) of the Constitution of Lesotho on the basis of the aforementioned pending investigation to be made on your competency as the President and as Justice of the Court of Appeal.11

Clearly, the Prime Minister was aggrieved by the decision of the Court of Appeal that affected him as the leader of a political party and used his power as the Prime Minister to remove a judge. This is a clear abuse of his power conferred by the Constitution. Furthermore, the lack of ‘competency’ that he uses as a ground for removing a judge is not one of the grounds for removing a judge in terms of s 125 of the Constitution. The section provides that a judge ‘may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour’.

These two cases of Justices Ramodibedi and Mosito bear loud testament to the fact that both the disciplinary standards and the process of dealing with those standards are deplorably weak under the Constitution of Lesotho. The Prime Minister (the executive) has unfettered power to discipline and remove judges, and Prime Ministers have consistently abused these processes.

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4.2 Alignment of the Superior Courts

Another troublesome issue regarding the judiciary in Lesotho is the alignment of the superior courts. The Constitution creates two superior courts — the Court of Appeal and the High Court. The Court of Appeal is created as ‘a superior court of record [which] shall have all the powers of such a court’ (s 123). Its powers are derived from the Constitution or ‘any other law’, which means that the Court of Appeal’s powers do not only derive from the Constitution and the Court of Appeal Act of 1978; its powers are also derived from common law. The Constitution creates the Court of Appeal as the superior court of record with the ‘powers of such a court’ (s 123). While these powers are rarely explored by the Court, this constitutional injunction gives the Court of Appeal very wide and far-reaching powers. Courts of appeal, or superior courts like Supreme Courts of Appeal, are not only the apex courts in the judicial system. They are also supervisory courts — they supervise all other superior courts (Pfander, 2001). Their powers are sometimes meta-legal because they deal with matters of justice and fairness, not only strictly legal matters. This position was referred to in Lepule v Lepule12 where the Court of Appeal not only acknowledged that the powers of the Court of Appeal may be derived from common law, but also confirmed that the Court of Appeal is a court of justice and equity. The Court said:

In jurisdictions where apex courts have not by express legislation been clothed with the direct jurisdiction to review their own judgments, to enable them to do so, apex courts have resorted to their inherent common law jurisdiction to serve the interests of justice, ensuring that their decisions are just and equitable (para 94).

The Court of Appeal is headed by the President, and the Constitution provides that its judges are appointed by the King on the advice of the Judicial Service Commission ‘after consultation with the President’ (s 124). The anomaly is that the Constitution provides that the Chief Justice and the judges of the High Court are ex officio members of the Court of Appeal (s 123). This is one of the historical legacies of colonialism. Historically, the Court of Appeal for Basutoland, Bechuanaland and Swaziland was established with judges of the High Court.13 Even the Chief Justice of the three High Commissioner’s territories became the President of the Court of Appeal. The present alignment between the High Court and the Court of Appeal is a legacy of this fusion. This fusion was unsuccessfully challenged in Law Society of Lesotho v Ramodibedi NO and Others.14 This case addressed the appointment of Justice Ramodibedi in 2002 as a

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substantive judge of the Court of Appeal while he retained his position as a puisne judge of the High Court. Maqutu J held that ‘these superior courts of Lesotho have a long tradition. If the Constitution had intended to alter their traditions and the status of judges of the High Court who sit and have a right to sit in the Court of Appeal, it would have said so’ (para 15). Clearly this fusion between the High Court and the Court of Appeal taints the right of appeal, which gives every person a right to be heard by a ‘different court’. While the fusion persists, the perception remains that the two courts are in fact one entity.

On the other hand, the Constitution establishes the High Court with ‘unlimited original jurisdiction to hear and determine any civil or criminal proceedings and the power to review the decisions or proceedings of any subordinate or inferior court’ (s 119(1)). The High Court is also a superior court of record and, like the Court of Appeal, its powers are derived from the Constitution and ‘any other law’ (s 119). This clearly includes common law. The Constitution provides that the judges of the High Court shall be the Chief Justice and other judges. The fact that the Chief Justice sits on and leads the court — which is not the apex court — is an anomaly on its own. While the position of Chief Justice is widely understood as the head of the judiciary, both intellectually and administratively, the Constitution of Lesotho does not provide for those powers. When the Chief Justice assumes power as the administrative head of the judiciary in Lesotho, she or he does so based on common practice throughout the Commonwealth, not in terms of the Constitution of Lesotho. The Constitution of Lesotho, read in totality, creates the office of Chief Justice as the leader of the High Court. Hence, in 2009, the Cabinet of Lesotho issued the Precedence (protocol) List which placed the President of the Court of Appeal before the Chief Justice (‘Nyane, 2016). The basis for the government’s decision was that the President of the Court of Appeal sits in the apex court, therefore it was logical to put him ahead of the Chief Justice in the List. The protocol caused a huge row but the decision of the Cabinet, although it was not in accordance with common practice elsewhere, was not entirely irrational in terms of the constitutional design of Lesotho.

The anomaly also became apparent in 2019 when the Acting Chief Justice was seized with a case that concerned the elective conference of the ruling party, All Basotho Convention. The litigants in that case took the ruling of the Acting Chief Justice on appeal. The Court of Appeal directed that the matter be heard by a different judge,15 thereby effectively removing the matter from the Acting Chief Justice.

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The Acting Chief Justice did not take very kindly to this and wrote a scathing letter to the President of the Court of Appeal, protesting the Court of Appeal decision. The altercation continued as the President also retorted with a letter. Another elephant in the room is the ‘Constitutional Court’. Despite it having been created fairly recently, in 1993, when the phenomenon of constitutional courts was already on the ascendancy globally, the Constitution of Lesotho does not provide for the Constitutional Court in the schema of superior courts in Lesotho (s 118), nor is there an Act of Parliament establishing the Constitutional Court. However, the Court started operating in 2000 after the adoption of specialised rules. The rules are the same as the rules of the Constitutional Court of South Africa, almost ipsissima verba. The Court has grown in power since its creation in 2000. In Chief Justice and Others v Law Society16 the Court of Appeal held that the Bench of the Constitutional Court should always comprise no fewer than three judges, with regard being had to the seriousness of its decisions.

Nevertheless, the Constitutional Court is arguably unconstitutional, not being established by the Constitution or by an Act of Parliament as provided for in s 118 of the Constitution, which states that any court not established by the Constitution ‘may be established by Parliament’. The reality of the matter is that the Court was impliedly established by the Constitutional Litigation Rules of 2000.17 The argument that the Court is simply a branch of the High Court is disingenuous, as this Court exercises immense powers, including the power to invalidate laws and administrative action. The Constitutional Litigation Rules of 2000 are therefore ultra vires the Constitution. Such a significant court cannot be created by rules, nor can it be argued that ‘it is a branch of the High Court’.

Be that as it may, the Constitutional Court is a necessary structure in the judicial system in Lesotho. Since the judiciary is so weak in relation to the executive and legislative branches, a court as powerful as the Constitutional Court may be a welcome development. Furthermore, if Lesotho does introduce a new Constitution, as this paper suggests, the new constitutional project will need a structure like a Constitutional Court to incubate it. The question is where it should fit in the hierarchy. As demonstrated in Figure 1 below, this paper suggests that the Constitutional Court should be the apex court on constitutional matters and matters incidental thereto. This Court must be headed by the Chief Justice. The Court of Appeal should be retained as the final court on non-constitutional matters. This model exists in South Africa and Zimbabwe, and there is therefore no need for great innovation.

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This re-alignment will also address the other two problems identified above — the fusion of the superior courts and the precedence tussle between the Chief Justice and the President of the Court of Appeal. If the Chief Justice heads the Constitutional Court, the head of the Court of Appeal will be the President and the head of the High Court will be the Judge President.

4.3 Lower Courts: Effacing the Colonial Legacy and Introducing a One Court System

The lower courts in Lesotho obstinately continue to represent Lesotho’s colonial legacy, in two fundamental respects. They represent the duality in the legal system that was preferred and inculcated by the British colonial administration in Lesotho (Poulter, 1969). They also still retain the structure adopted by the erstwhile colonial administration. This tier of the judicial system comprises ‘customary law courts’ and magistrates’ courts. The ‘customary law courts’, which were styled as ‘Native Courts’ originally, are made up of Local Courts, Central Courts and the Judicial Commissioner’s Court. In terms of the Central and Local Courts Proclamation,18 the Local and Central Courts administer ‘the native law and custom prevailing in the territory, so far as it is not repugnant to justice or morality or inconsistent with the provisions of any law in force in the territory’.19 Clearly, this repugnancy clause renders customary law — probably because it is the law of the natives — subservient to other sources of law, which are not necessarily higher in the hierarchy (Taiwo, 2009).

While the Local Courts are the courts of first instance, the Central and Judicial Commissioner’s Courts are appellate courts. These appellate customary courts are not only the flagbearers of colonialism; they are also redundant. The system provides sufficient appellate recourse all the way to the Court of Appeal. The only purpose served by these customary appellate courts is to make a case based on customary law expensive to pursue. In fact, the colonial administrators’ assumption was that very few cases by natives would be taken to the highest court in the land.

The local courts should still be retained but should be fundamentally reformed to remove the colonial legacy. They are the first face of justice for local communities. However, they should form a part of the entire (single) legal system, without limiting their jurisdiction to customary law alone. It is disingenuous to say that Lesotho has two legal systems — customary law and ‘Roman Dutch’ common law (Beardsley, 1970; Palmer & Poulter, 1972). These are simply multiple sources of one legal system. Hence, the

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Local Courts should have the jurisdiction to administer all sources of law in Lesotho — including customary law, statutory law and common law. Their jurisdiction should be limited only by their locality, a monetary ceiling, and the types of civil claims and criminal offences. But these courts represent the nucleus of the court system in Lesotho. The fact that they are staffed by untrained personnel is only one aspect of the perpetuation of injustice against the ‘natives’. Today the country has a large number of law graduates, and there is no reason why these courts should continue to be staffed by untrained personnel.

The magistrates’ courts are not any different. They owe their genesis to the same 1938 reforms that saw the introduction of the current court structure in Lesotho. These courts were created specifically as statutory courts to administer ‘received common law’ (Poulter, 1969). They have not really changed since then, and remain as courts of first instance for common law claims and certain common law and statutory criminal offences. They are headed by the Chief Magistrate, who is assisted by magistrates of various classes: the Senior Resident Magistrate, then the Resident Magistrate, and then Magistrates of the First, Second and Third Classes.20 These classes were initially intended to demonstrate the competence of magistrates to handle both criminal and civil cases. The Chief Magistrate has the highest civil and criminal jurisdiction. The magistrates’ courts remain as the most important tier of the judicial system because they handle medium-sized cases, and the majority of civil and criminal cases fall within this category.

However, these courts need to be reformed in three fundamental respects. The first issue is to open them up for a direct appellate and review relationship with the Local Courts. That will enhance the notion of a unified legal system. They should however continue to be courts of first instance for medium-sized civil and criminal cases.

Another area of reform is to dismantle the colonial classification of magistrates and their competencies, as this classification does not serve any significant purpose. In any event, litigants do not know and use this classification in practice. They institute their proceedings in the magistrates’ courts if their case falls within the broader jurisdiction of the magistrates’ courts. It is argued that classes of magistrates also serve as career progression for magistrates, but the career progression of magistrates can still be addressed without affecting the legal system and the competence of the magistrates’ courts. The judicial officers may still be ranked according to their seniority, without affecting the competence of the court.

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The third area that must be addressed is the magistrates’ courts’ close relationship with the Ministry of Justice. A hangover from the colonial era is that the magistrates’ courts are departments of the Ministry of Justice. As a result, the Ministry is unusually close to the recruitment of magistrates and the financing of the magistrates’ courts. This model of regarding the magistrates’ courts as part of the executive became clear in 2005, when the Principal Secretary in the Ministry of Public Service wrote a letter to all magistrates, assigning them to the District Administrators in their respective districts and directing that, as from 1 October 2005, all magistrates would be responsible to their District Administrator.

The essence of this directive was that the magistrates would no longer be responsible to the Principal Secretary for the Ministry of Justice but, instead, they would be responsible to the District Administrator. The assignment was challenged by the magistrates’ association in Judicial Officers’ Association of Lesotho and Another v Right Honourable the Prime Minister Pakalitha Mosisili NO and Others, which was heard in the Constitutional Court.21 The association argued that the directive violated the principle of separation of powers. Bizarrely, the rules of the Judicial Service Commission also place the magistrates under the jurisdiction of the Public Service. In particular, rule 16 provides that it is a disciplinary offence for a judicial officer ‘by any act or omission [to fail or to refuse] to comply with sections 13, 14, 15, 16, 17 and 18 of the Public Service Act 1995.’ In Judicial Officers’ Association of Lesotho the Court could not declare the rule unconstitutional, but the Court nevertheless held that the assignment of the magistracy to the District Administrator was unconstitutional. In relation to the rule, the Court noted that:

In retrospect, one may say that Rule 16 should have been drafted with much greater care, clarity and circumspection so as to remove any ambiguity that judicial officers were being subjected to executive authority under the Public Service Act 1995 or any subsequent Act (para 66).

The court here just became shy to declare the Rule unconstitutional. This Rule underpins the long-held view that magistrates are civil servants in the Ministry of Justice. The independence of the magistrates could be further enhanced by strengthening the Judicial Service Commission as an institution that hires and removes all judicial officers. At an administrative level, the Office of Chief Justice must be fortified with a senior administrative person, either the clerk or the registrar for lower courts.

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5. CONCLUSION

This paper has sought to make a case for the fundamental changes that need to be made to the judicial system in Lesotho. An attempt has been made to demonstrate that, apart from addressing the structural defects with the current judiciary, the theoretical foundations of the judiciary in Lesotho need to be revisited. This, in some way, will necessitate a review of the entire constitutional design. The paper has contended that, at the theoretical level, the two Westminster constitutional doctrines — the doctrine of executive (royal) prerogative and the doctrine of parliamentary sovereignty — continue to cast their dark shadows over the judicial system in Lesotho. These theoretical underpinnings have coalesced to produce a weak judiciary that is often beholden to the executive and legislative branches. This model, where the judiciary is weaker than the political branches, is contrary to the contemporary global pattern, where the judiciary is becoming increasingly assertive. In the last few decades, constitutionalism has led to the unprecedented growth of judicial power. The main drivers of this judicial power are modern notions such as human rights, the separation of powers, constitutional supremacy and many other liberal precepts. In accordance with these progressive approaches, the judicial designs of the world have abandoned notions such as parliamentary supremacy and its artefacts, such as the doctrine of ultra vires. It is recommended that Lesotho should boldly abandon Westminster-based constitutional theory and adopt the modern inter-branch model wherein all branches of government are regarded as co-equal.

Furthermore, the paper has sought to expose the vestiges of colonialism in the current judicial model. Colonial era judicial practices have obstinately persisted. For instance, the bizarre assertion that Lesotho’s legal system is a dual system has its origins in colonialism. This dual approach has divided the court system into two systems: one for natives and the other for Europeans. This should be regarded as embarrassing for a country that became independent in 1966. This paper argues that the courts in Lesotho should be realigned to create one legal system enforced by one court system in terms of the Constitution. Figure 1 below suggests how the court system may be realigned.

This paper also analysed the structure and powers of the Judicial Service Commission. Figure 2 below shows the proposed new structure of the Judicial Service Commission.

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FIGURE 1: Proposed Single Court Structure

Current Dual CourtCurrent Structure Dual Court Structure Proposed SingleProposed Court StructureSingle Court Structure

CONSTITUTIONALCONSTITUTIONAL COURT COURT COURT OF APPEALCOURT HEADED OF APPEAL HEADED BY PRESIDENT BY PRESIDENT HEADED BY CHIEFHEADED JUSTICE BY AND CHIEF JUSTICE AND

HIGH COURT ANDHIGH COURT AND COURT OF APPEALCOURT OF APPEAL CONSTITUTIONALCONSTITUTIONAL SEAT OF THE CHIEFSEAT JUSTICE OF THE CHIEF JUSTICE COURT COURT HEADED BY PRESIDENTHEADED BY PRESIDENT CEJUSTICE CEJUSTICE

HIGH COURT HIGH COURT SURBODINATE COURTSSURBODINATE COURTSJUDICIAL JUDICIAL COMMISSIONER COMMISSIONER HEADED BY JUDGEHEADED PRESIDENT BY JUDGE PRESIDENT HEADED BY CHIEFHEADED BY CHIEF MAGISTRATES MAGISTRATES CENTRAL CENTRAL COURTS COURTS MAGISTRATE COURTSMAGISTRATE COURTS

Customary Law Courts Customary Law Courts HEADED BY CHIEFHEADED MAGISTRATE BY CHIEF MAGISTRATE LOCAL COURTS LOCAL COURTS

LOCAL COURTS LOCAL COURTS

HEADED LOCAL COURTSHEADED LOCAL COURTS PRESIDENT PRESIDENT

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FIGURE 2: Proposed Structure of the Judicial Service Commission

Current Structure Proposed Structure

a) The Chief Justice, as chairman; a) A chairperson who shall be the Chief Justice;

b) The Attorney-General; b) The President of the Court of Appeal,

c) The chairman of the Public c) Two other members of the Service Commission; senior judiciary designated by the Chief Justice;

d) A member appointed from d) A Chief Magistrate; amongst persons who hold or have held high judicial office. e) Two other practising members of the legal profession;

f) A teacher of law;

g) Five other lay members (civil society);

h) The Attorney-General;

i) The Director of Public Prosecutions.

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ENDNOTES

1. (1926–53) HCTLR 2. 2. Proclamation 18 of 1954. 3. Act No 4 of 1967. 4. Court of Appeal and High Court Order No 17 of 1970. 5. See Mokotso and Others v The King CIV/APN/384/1987; R v Mofelehetsi Moerane 1974/1975 LLR 212; Makenete v General J.M. Lekhanya and Others 1991–1996 LLR 486. 6. Constitutional Case No 1 of 2003. 7. CIV/APN/145/85 https://lesotholii.org/ls/judgment/court-appeal/1985/118 (accessed on 15 January 2019). 8. Tsang and Others v Minister of Foreign Affairs 1993–94 LLR–LB 45 (HC). 9. 1997 (3) SA 786 (CC). 10. See All Basotho Convention and Others v Lehana and Others (C of A No 32 and 33 of 2019). 11. See a letter by Prime Minister Motsoahae Thabane to Judge President (sic), Dr Kananelo Mosito KC, dated 5 July 2019. 12. C of A (CIV) No 34/2014. 13. See s 6 of Statutory Instrument No 1369 of 1954. 14. Constitutional Case No 1 of 2003. 15. See All Basotho Convention and Others v Lehana and Others (C of A No 32 and 33 of 2019). 16. C of A (CIV) No 59/2011. 17. Legal Notice No 194 of 2000. 18. Central and Local Courts Proclamation 62 of 1938. 19. Section 9. 20. Subordinate Courts Act No 9 of 1988 (as amended). 21. Constitutional Case No 3 of 2005.

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The Transformation Resource Centre (TRC) is an ecumenical organisation dedicated to the promotion of justice, peace, good governance, and participatory development. Established in 1979, the TRC’s main focus is to empower communities and citizens to take the lead in articulating their positions and advocating for development that aims to better their lives.

The TRC works for and with communities to influence government policy decisions through a number of activities that

I. Contribute to transforming the orientation, understanding, and management of public-interest issues; II. Research and document national (primarily) and related regional, continental, and international developments in thematic areas of its work; III. Analyse policies, current trends, and possible directions; and advise policymakers and other identified stakeholders; IV. Educate and provide new information and perspectives; V. Train and build skills base to be used for developmental and transformational purposes; VI. Develop, create or contribute to new knowledge and understanding through discussion and debate; VII. Provide services that help and enable clients solve their own problems.

Democracy and Human Rights The focus of the programme is to strengthen public understanding, appreciation and participation in democracy; and supporting democratic institutions. The TRC has reached thousands of Basotho in the rural areas through civic education; and has been vocal in lobbying for the establishment of a Human Rights Commission. Recently, the programme widened its reach with the introduction of peace building.

Social Justice The primary focus of the programme is to advocate for justice on water and environmental issues that affect communities. The TRC believes that economic activities are crucial for realising development while also including the interests and welfare of the public. The TRC has been fighting for the compensation and economic rights of individuals and communities affected by the Lesotho Highlands Water Project, and those affected by extractive industries.

Resource Centre and Media This is a repository of knowledge accessed and used by the TRC team, students, and policymakers to broaden their perspectives on different issues. The Library has proved itself as the key source of important information on social, political, economic, and cultural issues in Lesotho. The programme also communicates the TRC’s activities to the world.

The TRC carries analyses and commentaries on important national issues, and sets the agenda through public forums, regular journals, Work for Justice, and Litaba tsa Lesotho, as well as occasional papers and research reports.

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