Let Jus­tice Mos­ito do his job

Lesotho Times - - Scrutator -

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)

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