Sta­ble ju­di­ciary key for rule of law

Lesotho Times - - Leader -

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.

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