Stable judiciary key for rule of law
THE perennial truism that where two elephants fight, the grass always suffers, rings true in the current continuing turf war in what should be our most venerable institution; the judiciary. It is indisputable that the complete trashing of the rule of law, just as the panning of the grass in bull elephant fights, is always the inevitable consequence of any judicial instability. And whenever the rule of law is trashed, democracy and human rights are imperilled.
Because of its vital importance as the ultimate vanguard for the safeguarding of the rule of law, the judiciary in any given country ought to be the most stable of the three arms of the state. The others being the executive and the legislature. It does not need the wisdom of a rocket scientist to see that Lesotho’s judiciary risks being consumed in continuous conflict, originating in politics, to the detriment of efficient justice delivery.
After the failure of an earlier court bid spearheaded by the attorney-general to get the Constitutional Court to nullify his appointment by former premier Thomas Thabane as head the Court of Appeal, Director of Public Prosecutions (DPP) King’s Counsel (KC) Leaba Thetsane, has now preferred criminal charges of delaying to submit tax returns against Justice Kananelo Mosito. Justice Mosito has since slammed the latest action as vindictive and unconstitutional and launched his own application to have Advocate Thetsane’s actions stopped. We wait for the courts to pronounce on the latest dispute.
What is clear though is that this latest battle between the two senior occupants of two important offices in the administration of justice signals portentous and ominous signs for the delivery of justice in this country. It does little to convince Basotho that our legal welfare matters most to those tasked with guaranteeing us that right. How can Basotho expect efficient justice delivery when the very officials tasked with this venerable duty are always at loggerheads, fighting themselves in the very same courts they are supposed to assist in ensuring justice for all and sundry?
We have seen how judicial infighting has put the justice delivery system in South Africa into ill repute. The National Prosecuting Authority (NPA) has been pandering to politicians at the expense of what that body is tasked to do; prosecuting without fear, favour or prejudice. As a result, crime in South Africa has spiralled out of control.
Granted, Justice Mosito’s appointment in January was indeed controversial. It was criticised on a number of grounds. It resulted in the resignation of all members serving in the appeal court then. Justice Mosito’s selection was spearheaded by Dr Thabane just weeks before the February 28 2015 elections and despite an all-party election pledge to avoid appointments and removals of key officials. Five prominent lawyers strongly criticised Dr Thabane for making such a significant appointment when he was merely caretaking for the government after the collapse of his coalition with Methotjoa Metsing. Attorney Deneral, Tšokolo Makhethe, the government’s chief legal advisor, then led a Constitutional Court application arguing that Mosito’s appointment was irregular and invalid.
However, three South African judges seconded to Lesotho heard the case and ruled in favour of Justice Mosito’s appointment. They found that the government had not breached the law with the appointment. And therein lies the crux of the matter. The courts ruled in favour of Justice Mosito’s appointment. Why not respect that and allow him to do his job. Without considering its merits in any detail, the latest prosecution of Justice Mosito makes it abundantly clear he is not a favourite of the new coalition.
It makes it difficult to avoid the impression that the new coalition is all out to target all of Dr Thabane’s appointees and replace them with its own candidates. That means the continuous politicisation of all key state institutions, something we are all agreed must be stopped if Lesotho is ever to move forward.
We are not saying Justice Mosito should not be prosecuted if he indeed committed a crime. In fact one can argue the integrity of the judiciary can only be enhanced if its officers are brought to account for any wrong-doings. It’s just that at face value, the unprecedented case brought against Justice Mosito appears to be more like a desperate phishing expedition aimed at finding a reason to settle old scores.
Perceptions are always more important that reality. In this case, the perception that state recourses are being expended to get rid of an unwanted appointee of the previous regime cannot be avoided.