Lesotho to select 7 new judges on merit

LESOTHO’S Judicial Service Commission has started a process to recruit seven judges of the high court through a merit-based process.

In February 2021, the commission issued a public advertisement announcing the vacancies and spelling out the competencies required. The vacancies follow a slew of deaths and retirement of judges.

The high court is the second highest court in Lesotho; after the Court of Appeal. But, the high court is more important as it is the highest court with unlimited original jurisdiction to hear and determine any civil or criminal proceedings, and the power to review the decisions or proceedings of any subordinate court or tribunal. Since 2000, the court has sat as a constitutional court when it decides on constitutional matters.

The constitution provides that the high court shall comprise the chief justice and any number of judges as the act of parliament may determine. Judges are appointed by the king on the advice of the Judicial Service Commission (JSC). The JSC is a constitutional structure responsible for the appointment, conduct and removal of judicial officers.

The advertisement was intended to culminate in public interviews of shortlisted candidates in May. But the process has been suspended due to lack of funding.

Nevertheless, the move to appoint judges through an open process based on merit is unprecedented in Lesotho, a small nation that is landlocked by South Africa, and thus laudable.

So far, the appointment of judges has been an obscure and often clandestine affair between the commission and government. This has produced incompetent judges and claims that the judiciary is beholden to the executive.

Welcome as it is, the move towards an open process is only a small step in reforming the country’s judiciary. The appointment of judicial officers in Lesotho is beset with much deeper systemic problems that need urgent attention.

In the past, the public used to simply see a person being announced as a judge of the high court by the JSC. The usual practice has been to appoint a person as an acting judge, which would ordinarily attract little public scrutiny, and later confirm the person as a permanent judge.

This deplorable practice is arguably a factor, among others, contributing to the current state of incompetence in the high court. The Court of Appeal often decries the quality of the judgments of the high court judges.

Until now, the JSC and the government have tended to promote either magistrates or registrars of the high court to the bench. The registrar is the chief accounting officer for the judiciary. Even this practice was not based on any objective criteria.

Sometimes, very junior magistrates would be appointed over more senior and competent ones. That practice excluded other areas of the legal profession, such as private legal practitioners (lawyers) and legal academics.

Perhaps the new approach to recruiting judges is inspired by the practice in South Africa, and the fact that Lesotho is in the process of constitutional reforms.

While the new move is welcomed, a lot still remains to be done to enhance merit in the appointment of judges of the superior courts in Lesotho.

The problem is that meritocracy is currently not a constitutional requirement. The constitution is still cast in the colonial mould where the executive dominates the appointment of judges. That needs to change.