Let Justice Mosito do his job
IT goes without saying that a viable independent judiciary that brooks no political interference is the cornerstone of any functional democracy. In Scrutator’s wisdom, if the independence of the judiciary is compromised, then all other constitutional freedoms are trashed.
The judiciary in any given democratic setting is always the last line of defence for the enforcement and safeguarding of the rights of citizens and for checking executive power.
I believe there should always be some healthy tension and if need be, acrimonious wrangles, between the executive and the judiciary not least for the good of democracy. But for citizens to ascertain the independence of their judges and magistrates.
If the judiciary finds itself existing in a state of permanent harmony with the executive, then something is terribly wrong. Either the judges have been bought out or co-opted or they are simply incompetent.
The constitutional recognition of the separation of powers doctrine between the executive, the legislature and the judiciary is aimed at ensuring that state power is shared by these three arms of state and each acts as a counterweight against abuse of power by the other.
But members of the executive (in our case the Prime Minister and his cabinet) always perceive themselves as superior to the other two legs of state power.
The argument put forward by members of the executive arm of government the worldover is that they draw their legitimate power directly from the voters who elect them via a direct franchise.
So why should unelected judges tell those popularly-elected politicians what to do or what not to do? The logic of politicians here is that they are elected to implement programmes and actions that they have promised the people. So they should not be scuppered by the whims and caprices of judges. This logic is seriously warped nevertheless.
Democracy, by its very nature, means everyone must stick to certain predetermined standards and principles. And any country that presupposes to be a democracy will not exclude judicial review of any executive action. This thus means everyone is subject to the law. It then becomes the duty of the executive to enforce the law.
I particularly like the American system where there is a complete separation of powers between the legislature (the House of Representatives and the Senate) and the judiciary and the executive.
Once a person elects to become part of the legislature, they cannot be appointed to sit in the American president’s cabinet unless they first resign their position in the legislature.
In Lesotho, however, as is the case in many other countries, members of the cabinet are drawn from the legislature (National Assembly and the Senate). The argument is that they should be accountable to the legislature so they must sit in it.
Equally so, even in a banana republic, members of the judiciary cannot sit in either the executive or legislature. I nevertheless prefer the American system where there is a complete separation of powers between the three arms of government.
Generally, if I had to make a choice between these three arms, I would say the judiciary is most important. It is the vanguard institution in upholding all rights.
But post-colonial Africa is littered with many example of countries wherein citizens have had to forfeit all their constitutional rights because their judiciaries were too corrupt or too compromised to administer justice.
Take for instance the example of Kenya under the autocrat Daniel Arap Moi when the judiciary in the east African country, just like any other facet of life then, was a byword for corruption and incompetence.
Every Kenyan’s ability to get justice under Moi’s courts was determined by their ability to pay a bribe. It is said that before a Kenyan judge could determine the exact size of the bribe that they wanted, they first had to visit litigants’ homes and assess for themselves how wealthy the litigants were.
The one who paid the biggest bribe, proportionate to his wealth as perceived by the responsible judge, got the judgment in their favour. I shall refrain from talking about the courts system in Nigeria for now.
But in Zimbabwe, it is rumoured that Robert Mugabe and his chief justice Godfrey Chidyausiku are so close that they sometimes even share the same prostitutes.
No wonder why Mugabe has carte blanche in everything he does and the courts are his cheerleaders. That partly explains why eight million of his people have fled including hordes who have settled in Lesotho. One must be really desperate to jump all the borders to settle in Lesotho.
But that just goes to explain what can happen if citizens have no access to justice. Mugabe is 92-years old but his magistrates at some stage jailed people caught complaining that they are being ruled by an old man because they saw that as defaming the president. Mugabe calls himself a young old man.
Nowhere in Africa is the importance of a vibrant and independent judiciary better illustrated than in our neighbouring country South Africa where the judiciary has played a vital part in curtailing Jacob “Nkandla Crooner” Zuma and his political excesses.
Imust say that I have got some form of admiration for Zuma. For such a completely uneducated former goat herder, philanderer, dancer and singer to have ascended to probably what is Africa’s most powerful post is nothing but a miracle.
I have often wondered how Zuma did it. How was he able to convince 50 million plus people, most of them bright and educated, that he deserves to lead them? I always ask myself. Even though the Nkandla Crooner has turned out not to be a great president, the mere fact that he has achieved such a feat despite his complete lack of any formal education is instructive. In life nothing is impossible. Education is not everything and everything is not education.
My loathing for Zuma of course stems from his brazen pursuit of self-interest at taxpayers’ expense.
Since he became president, his harem of wives, girlfriends, concubines and countless official and unofficial children (estimated to range anywhere from 35 to 100) have become filthy rich.
So rich have they become that the once modest Zuma, who used to wait in Schabir Shaik’s reception while Shaik’s secretary scrounged for keys to the petty cash box to give Zuma R30 for lunch, will never be poor again. The story of how Zuma splurged R246 million of taxpayers money to revamp his Nkandla homestead is now a matter of public record.
Public Protector Thuli Madonsela has ordered Zuma to pay back at least some of the money but the Nkandla Crooner has refused arguing that he never asked the State to revamp his homestead.
But judging from a recent brave judgment from the South Africa’s Supreme Court, affirming that the Public Protector’s rulings must be implemented, Zuma is in trouble. He will have to pay back the money — at least some of it- whether he likes it or not- or face severe judicial consequences.
And that is where the importance of an independent judiciary is best illustrated. Because of his excesses, now and in the past, Zuma has spent his days in office trying to shield himself from any future possibilities that he may be prosecuted.
Remember he may still be charged with nearly 800 counts of fraud arising from the payments he got from Shaik in exchange of favours.
To forestall any future prosecution, Zuma has developed a bad habit of filling key state positions with his cronies from Nkandla.
At face value, the doctrine of separation of powers would imply that judges cannot interfere with the president’s prerogative to appoint anyone he deems fit to any position. But the Constitutional Court in South Africa has begged to differ.
One of Zuma’s most egregious appointments was his anointing of one Menzi Simelane to head the key National Prosecutions Authority (NPA). Simelane is one of Zuma’s 100 percent zulu-boys. Those who think he is a Xhosa are wrong. Simelane may not hail directly from Nkandla but from somewhere near there.
Apart from being a fellow Zulu-boy of Zuma, Simelane is also an incorrigible and chronic liar and a crook who was found to have misled one key commission when he served as director general (principal secretary) of the Ministry of Justice.
When the opposition Democratic Alliance challenged Simelane’s appointment, the Constitutional Court did not hesitate to outlaw it on the basis that it was irrational.
The Constitution bound the president to appoint a fit and proper person to such a key post and Simelane did not fit that description, the Court ruled.
Recently, the Constitutional Court also ruled that it was virtually fine for Zuma to be labelled a thief over his failure to repay money spent on his private homestead. This was after Zuma and his ANC had petitioned the courts to stop the opposition from labelling Zuma a thief because he had not been convicted of theft by any court of law. Zuma failed in his bid.
My South African friends boast – and rightly so — that their country’s judiciary makes them proud.
They live with no fear of the executive at all as they know that the judiciary is the vanguard institution in protecting their rights and will do so with no fear or favour.
But the South African judiciary has not just fallen from the sky and decided to be a relevant institution in protecting constitutionally guaranteed rights of citizens.
The irony is that all the judges are appointed by Zuma.
But only after a very thorough, public and open interviewing process by the Judicial Services Commission (JSC).
Once appointed the judges enjoy security of tenure until they reach the age of 70. A judge can only be impeached for gross incompetence or for gross indiscipline or misconduct after a very stringent process which involves a JSC investigation and parliamentary vote.
Most importantly, once appointed the judges know that their duty is not to Zuma who has appointed them, but to the law and the constitution.
There is absolutely no chance that Zuma can just wake up one day and tell a judge that you delayed in submitting your tax returns and you must therefore vacate office. No chance. Despite the extent of Zuma’s evident bitterness with many of the judges, he cannot fire any one of them even if he wanted.
Independence of judges comes not only with the independence and integrity of the appointees themselves but with the security of tenure which must subsist under different political administrations. In America, judges are appointed for life. Unless there is security of tenure and judges are assured to remain in office regardless of their judgments against the executive, then their independence is invariably compromised.
It’s unavoidable that some partisan influence can play part in the appointment of judges. For instance a Democratic Party president in America will always want to try and pick up judges with liberal leanings for appointment while a Republican President would always almost nominate judges with conservative beliefs.
But all nominees are subjected to a through vetting process by Congress and the final decision depends on which party has control of both houses of Congress.
Any succeeding American president would never ever attempt to dismiss a judge appointed by a prior President for whatever reason. Any American president works with whichever judges they found in office. Current US chief justice John Roberts was appointed by George W. Bush in very controversial circumstances.
At the time of his appointment, Roberts was fairly young and wasn’t a sitting judge in the Supreme Court. But Bush parachuted Roberts to the apex seat of the American judiciary. Enter Barack Obama and he had no option but to respect Bush’s wishes.
Imagine a situation in which Obama would have scrolled through Roberts’ tax returns and attempted to remove him for allegedly filing the tax returns late. There would have been such an outcry that it would have been Obama himself who would have ended up being thrown in the dungeons.
This is what makes the situation of our very own Kananelo Mosito very sad. The temptation of politicians to control all the levers of power by appointing their own men and women to key positions is understandable.
In fact, one might argue that that it is the very essence of politics. But there are institutions that should forever be spared of political meddling. The judiciary is one of them.
Does the new coalition really have to go that far in trying to eliminate Mosito from office? Me thinks not. Granted, Mosito was appointed in very controversial circumstances. But no one was fired to create a position for him. The office of Court of Appeal president had been vacant.
That Cyclone Tom was bound by some agreement to refrain from making senior appointments was neither here nor there. Once a judge is appointed, he is appointed. It must be then left to that judge to either distinguish or disgrace themselves via the conduct of their judicial functions.
If I were Ntate Mosisili, I would just leave Judge Mosito there and let the judiciary be run by an indigenous white man. Why should politicians be afraid of judges anyway? The best recipe to stay in office is to endear your party to voters by sustaining service delivery and not having sympathetic judges.
We live in very complicated times. To Mosito I say, stay put buddy and avoid entrenching a bad precedent in which politicians change judges like diapers.
But if you manage to win the battle to stay in office, indeed be fair to everyone including your current torturer — Ntate Mosisili.
Appeal Court president Kananelo Mosito (KC)