Why this con­cern by lawyers?

Lesotho Times - - Opinion & Analysis - So­fonea Shale

Though the ap­point­ment of Nthomeng Ma­jara as the Chief Jus­tice marked the high­est fe­male achieve­ment in the ju­di­ciary in this King­dom, the mo­ment largely passed un­cel­e­brated.

The con­spic­u­ous si­lence on this im­por­tant mo­ment will be re­mem­bered in fu­ture for ei­ther what it meant or what it failed to com­mu­ni­cate.

While some may find it strate­gic to blame this on the events of the time which took cen­tre stage of pub­lic scenery such as the mil­i­tary at­tack on key po­lice in­stal­la­tions, the un­usual mil­i­tary call at State house, re­moval of the army com­man­der and the sub­se­quent in­ci­dences, more would be ex­pected from fe­male ac­tivists and those who support their cause.

Although the re­cently ex­pressed dis­con­tent by ‘Con­cerned Le­gal Prac­ti­tion­ers’ on the con­tem­plated ap­point­ment of the Pres­i­dent of the Court of Ap­peal has been largely re­ceived neg­a­tively, it may not be dis­sent all the way down. Per­haps, in­stead of look­ing at why the neg­a­tive re­sponse, the ques­tion should be why the lawyers’ disquiet?

In their state­ment of 5 De­cem­ber 2014, well­known and re­spected le­gal prac­ti­tion­ers, namely Ad­vo­cates Sale­mane Phafane KC, Mo­tia Teele, Karabo Mo­hau, Qhale­hang Let­sika and Zwe­lakhe Mda ob­ject the ex­pected ap­point­ment of one of their num­ber as the Pres­i­dent of the Court of Ap­peal.

Though they list their rea­sons for this stance which also call upon their learnt friend to de­cline the ap­point­ment, many in the pub­lic re­ject the call with­out both­er­ing to en­gage the rea­sons.

Most likely such re­ac­tion is in­formed by the po­lit­i­cal di­vide that has per­me­ated to very mar­row of the so­cial fi­bre of Ba­sotho so­ci­ety.

The con­cerned lawyers be­lieve that ap­point­ment is likely to bring ad­min­is­tra­tion of jus­tice into dis­re­pute be­cause it is hur­ried, their learnt friend tipped for this high re­spon­si­bil­ity is le­gal rep­re­sen­ta­tive of the Prime Min­is­ter and this comes as a pa­tron­age, and that it adds to the per­cep­tions that the sit­ting gov­ern­ment seeks to cap­ture key in­sti­tu­tions of state.

They ad­vise their col­league to de­cline the ap­point­ment lest what hap­pened in Kenya where judges ap­pointed un­der con­tro­ver­sial cir­cum­stances had to re­sign when things re­turned to nor­malcy. The lawyers ar­gue that they have al­ways main­tained that ju­di­ciary ap­point­ment should be made on merit, trans­par­ently and through a con­sul­ta­tive process.

They call upon the gov­ern­ment to avoid bring­ing ju­di­ciary into dis­re­pute and un­der­min­ing the in­de­pen­dence of the ju­di­ciary.

First and fore­most, th­ese lawyers are rais­ing a very crit­i­cal is­sue that Ba­sotho need to ad­dress. Ba­sotho can only avoid, dodge or de­fer this at their own peril. It is for the im­por­tance of this is­sue and brevity to raise and take it head on that th­ese lawyers should be applauded.

Surely there are flaws in their state­ment but en­gag­ing the state­ment should not be look­ing for loop­holes and sim­ply politi­cis­ing and send­ing the is­sue to the dogs.

Those who follow de­vel­op­ments in this coun­try with keen in­ter­est and are con­cerned about its progress will not de­monise the lawyers but use this state­ment to en­gage and find bet­ter ways of ad­dress­ing the core of their con­cern even if their sug­ges­tions may have lim­i­ta­tions.

In March 2012, hardly two months be­fore the Na­tional Assem­bly Elec­tions, the Com­man­der of the Le­sotho De­fence Force was ap­pointed.

This was quite in or­der and in line with Sec­tion 145(4) of the Le­sotho Con­sti­tu­tion as amended and Sec­tion 12(1) (a) of the Le­sotho De­fence Force Act of 1996. Although at that time Ba­sotho held con­cerns sim­i­lar to those held by th­ese lawyers now, they were hardly pro­nounced.

When the pre­vi­ous regime re­newed the con­tracts of Prin­ci­pal Sec­re­taries to­wards the end of its term, the dis­con­tent sim­i­lar to what is har­boured when the Act­ing gov­ern­ment Sec­re­tary is con­firmed at this time ex­isted.

The con­cerned lawyers should not be ridiculed; rather, they should be sup­ported to put their case in per­spec­tive.

In­stead of de­mon­is­ing the lawyers, ad­vise them that they should not just say they have al­ways main­tained that ap­point­ments should be made on merit and leave it there be­cause that gives the im­pres­sion that their tipped col­league does not qual­ify.

In fact, their learned friend is doc­tor legum ,an equiv­a­lent of a Doc­tor of Phi­los­o­phy in the so­cial and other sciences.

This is a lawyer who has a rep­u­ta­tion not only within the law sec­tor but even among the pop­u­lace; ask the work­ers and the poor, they will at­test to this.

But it may not help this na­tion, in fact it will de­rail this im­por­tant is­sue if lawyers are de­monised in­stead of be­ing strength­ened in their ar­gu­ment that they should not look at the ap­point­ment of the Pres­i­dent of the Court of Ap­peal this time as bring­ing the ju­di­ciary into dis­re­pute or un­der­min­ing the in­de­pen­dence of the ju­di­ciary be­cause that may mis­lead the masses.

In fact, in terms of Sec­tion 124(1) of Le­sotho’s Con­sti­tu­tion, it is the Prime Min­is­ter who ad­vices the King to ap­point the Pres­i­dent.

As part of the con­tin­ued pro­gres­sive en­gage­ment of this col­umn, an ap­peal is made that while there might be flaws in the state­ment of the lawyers, fo­cus should be on the core of the mas­sage.

The fact that th­ese lawyers have not pro­nounced them­selves un­der the aus­pices of the Law So­ci­ety should not only be looked at as a neg­a­tive move aimed at serv­ing hid­den agen­das but also be a crit­i­cal ques­tion to the na­tion about the po­tency of that au­gust body.

Can this not be a sign that the Law So­ci­ety is seen by part of its mem­bers as no longer a vi­able ve­hi­cle to carry se­ri­ous is­sues?

The re­ac­tion of the Law So­ci­ety is wel­come but may be it can go fur­ther to say how the vi­cious cy­cle can be bro­ken. Just ris­ing up to bite and then sleep may send sig­nals that the or­gan­i­sa­tion is just happy.

Maybe the lawyers should be ad­vised not to put un­due pres­sure over the tipped learned friend not to ac­cept the ap­point­ment be­cause for all in­tents and pur­poses, he qual­i­fies and ev­ery­thing is, up to this end, in line with the law.

In fact, the lawyers’ con­cern is not about the law but pol­i­tics that drives the ap­pli­ca­tion of the law.

The route the lawyers point may be too costly on in­di­vid­u­als, in fact, even too heavy on them be­cause if the Prime Min­is­ter does not ap­point now, the next in­cum­bent will and mostly likely one of the listed con­cerned lawyers would surely be tipped.

It may also not be help­ful to la­bel lawyers with clients be­cause the very same listed con­cerned rep­re­sent those who po­lit­i­cally op­pose those rep­re­sented by the tipped learned friend.

Would it not be ac­cu­rate there­fore to say that Le­sotho needs to re­view how key ap­point­ments are made in gen­eral and not just tar­get one in­ci­dent and also not cry foul when it is done to­day as though it is any dif­fer­ent from the way it was done yes­ter­day or it may be per­mit­ted by laws

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