Why this concern by lawyers?
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