Many people in the legal world will be aware of the looming constitutional crisis in Kenya where the President, Uhuru Kenyatta, has refused to appoint a number of judges whose names were presented to him by the Judicial Service Commission. Fewer, however, will have been aware that a similar problem has arisen in Lesotho and that litigation is now pending to test whether the King – Lesotho is a constitutional monarchy – may refuse to approve the appointment of candidates proposed by the commission.
No-one disputes that Lesotho has a serious shortage of judges. And with some having recently retired and two recent deaths, the situation has now become critical.
Towards the end of August, the Judicial Service Commission met to consider new appointments. There were five vacancies, and after the commission’s consideration, five names were finalised and sent to the King for appointment.
However, the following Monday, the Minister of Justice, Nqosa Mahao, called a news conference at which he questioned the legitimacy of the commission’s hearing and the list of names it had finalised for appointment.
This was followed by a statement from the commission, answering the criticisms made by the Minister, quoting legislation under which the commission operated, and pointing out that it had acted entirely within the law.
Since then – nothing. No appointments have been made, and the Minister has repeated that they will not be made.
However, that logjam might now be eased with the involvement of the courts as a result of litigation. One of Lesotho’s smaller political groups, the White Horse Party, has launched a petition, filing its papers in court this week. President of the party, Francis Thakaso, has cited a number of parties: the commission, the Minister of Justice, King Letsie III, the high court registrar, the national reforms authority, the law society, Lesotho Lawyers for Human Rights and the attorney general.
Head of State
Thakaso wants an interdict preventing the Minister from interfering with the process of nominating and appointing the judges, saying that it is unconstitutional for him to do so as it interferes with judicial independence and impartiality. He also wants the court to direct that the King, as head of state, should appoint and publish the names of the judicial appointees, and to declare that his failure to have done so already is unconstitutional.
In his founding affidavit Thakaso said that the judiciary was under tremendous pressure given the backlog of matters to be heard and decided. It had been ‘severely crippled’ in its task with the death of two judges who served on the commercial court. The delivery of justice at the high court was at an ‘indefinite standstill’, he said. Added to that there had been retirements by other judges, resulting in the effectiveness of the high court being compromised.
The delay in appointing those recommended by the commission, on top of the existing vacancies, ‘weighted heavily and negatively’ on the administration of justice, and he thus urged that the appointment of judges to fill the vacancies should be finalised ‘with utmost urgency’. A total of just eight judges was serving the whole of Lesotho at the moment, he explained.
Thakaso said that the commission had carried out its mandate, but that this had been frustrated by the Minister who had called a press conference and announced ‘that he has to be consulted’ and that the five nominated persons ‘will not be appointed as he was not informed of their nomination.’
As a member of the executive, the Minister should ensure that the courts were ‘independent and effective’, said Thakaso. In that capacity he should also not interfere with the other arms of government. By blocking the appointment of the judges, the Minister ‘is infringing’ the independence of the judiciary.
Thakaso then raises a matter mentioned by the Minister at his press conference. Mahao referred to proposed legislation, the Administration of the Judiciary Act of 2011, that he had asked Parliament to approve.
He also said that ‘the act’ (of the commission considering and nominating candidates to judicial office) ‘was not authorised by His Majesty’s government, it was not authorised by this Minister of Justice because we know nothing about it.’
The Minister referred to the ‘great error’ that the commission had committed and said it would be ‘rectified’. His ministry had ‘tabled a plea’ that the new law governing the courts, and entitled ‘the Administration of the Judiciary Act, should be ‘looked into so that soon that law can be tabled before parliament’.
In the meantime, said the Minister, until the new law had been passed, only acting judges should be appointed. As for the meeting of the commission and its nominees: ‘The process that is said to have taken places these past days, we don’t even know in what manner it was done, but we are convinced that it lacked government guidance for it to have achieved those minimum benchmarks which are expected to have guided it.’
Hamper judicial independence
Thakaso, in his affidavit, said however, that the proposed new law would hinder the administration of justice and hamper judicial independence.
He then recites the existing law, clause by clause, as it applies to the appointment of judges, and says that the commission complied with the law. As a result, it was mandatory for the King to appoint those whose names were presented by the commission, but he had not done so because of the Minister’s intervention.
His failure to appoint the new judges violated the rights of the commission, the nominees and the public to proper administration of justice. It also violated the rule of law and good governance among others.
According to Thakaso the commission had ‘sole responsibility’ for the nomination of judges. Until the relevant laws were ‘formally amended’ the administration of justice should continue as before.
On the new legislation that the Minister wanted to see come into operation, he said that ‘any Act’ seeking to ‘administer the judiciary’ would compromise it. Such a law would thus be unconstitutional. It was therefore essential that the Minister was interdicted from influencing the process of judicial appointment.
If the Minister wanted an ‘Act for the administration of the judiciary to be passed’, said Thakaso, the Minister ‘should patiently wait for the reforms to take place’.
In the meantime, until the matter was fully argued, an interim order against the Minister was needed because if he were allowed to become involved in the selection of judges ‘we would suffer irreparable harm as a nation since we do not know his intentions (in) wanting to deviate from the constitutional requirements.’