Lesotho’s CJ fights back after apex court’s critical judgment

27 May 2022 · Carmel Rickard

The Chief Justice of Lesotho, Sakoane Sakoane, has reacted sharply to a judgment by the country’s appeal court that found he ought to have recused himself from presiding in a major treason and murder trial. The court found that the prosecution’s claim to have a reasonable apprehension of bias by the CJ was well founded, and ordered that another judge take over the trial. But in reaction, the CJ has questioned whether ‘foreign’ judges ought any longer to preside over cases heard in Lesotho. He has also raised questions over the legality of part of the appeal court’s order.

Read judgment

In a decision that has caused something of a sensation among Lesotho’s legal and political circles, the court of appeal (consisting of three judges, two of them from outside Lesotho) has found that the country’s Chief Justice, Sakoane Sakoane, was wrong in refusing to recuse himself from hearing a high-profile murder and treason case. The court also ordered that the trial be re-assigned to another judge because there was a reasonable apprehension of bias about his handling of some preliminary issues.

The CJ has reacted angrily to the appeal decision. In an official speech at the opening of a new court, delivered just three days after the appeal judgment, he said that the time had come for all cases in Lesotho to be heard by local judges, rather than by judges brought in from outside (as had been the case in the recusal appeal decision).

He also said, in court, while discussing what should happen in the light of the appeal decision, that he was not going to ‘simply rubber stamp’ the higher court’s judgment.

Treason

The dispute has its beginnings in conflict between the CJ and the Director of Public Prosecutions over the handling of the murder and treason case, and in particular the position of controversial South African advocate, Shaun Abrahams, brought in by the DPP as lead counsel for the prosecution. Much of the conflict appeared to relate to the CJ’s concern that the case was taking far too long to get started, and his push to get the matter off the ground.

Claiming to be acting under the Speedy Court Trials Act the CJ found Abrahams had acted improperly and ‘punished’ him by declaring that he was not allowed to appear in the trial.

The DPP claimed that these, and other decisions, tended to indicate a bias against the prosecution and asked that he recuse himself, something the CJ refused to do.

‘Syndrome of judicial dependency’

The appeal court, however, has now found that the CJ must stand down from the case, and that it should be allocated to another judge. The three appeal judges, from South Africa and Zimbabwe as well as a retired senior judge from Lesotho, also found that the prosecution’s apprehension of bias was reasonable. And they set aside the CJ’s decision against Abrahams, saying the law did not permit a ‘punishment’ of the type meted out against him by the CJ.

Three days after this judgment was delivered, the CJ spoke at the opening of a new court to serve the people of Lesotho’s northern area. He said that the judicial system of Lesotho had ‘come of age way back’ and that there was a wealth of experience among advocates and attorneys.

He added, ‘For this reason, it is no longer necessary to import judicial officers from other countries. We have to wean ourselves from the syndrome of judicial dependency.’

Nation’s heart-beat

‘Our superior courts should be manned fully by our own home-grown lawyers. They are the only ones who understand and master the dual legal system in this country. They are the ones who feel the pain and hear the heart-beat of this nation. They witness the impact of their judgments from close range and not afar.’

The following day, during a hearing related to the newly-delivered decision, the CJ called on counsel for the prosecution and referred to the order of the appeal court that the trial should be ‘allocated by the registrar to another judge’.

Was it not correct that this order effectively meant the CJ should abdicate his functions stipulated under the High Court Act, he asked counsel.

Implications

Then followed comments by the CJ to the effect that the three appeal judges had made an order that was unlawful.

In particular, he said the court of appeal had called on him to ‘usurp’ his functions and give them to the registrar. ‘The court of appeal said that I must do that. Are you aware of the implications of that?’

‘What happens if a court issues an order [which is against] the law of the land? A citizen is ordered by a court to contravene the law of the land; what should that citizen do, for example? As a matter of common sense?

Contravene

‘Section 12 is very clear that the CJ shall regulate the distribution of business in the court … but the court of appeal has said that I should not do those things; they should be done by the registrar.

‘The functions of the registrar have been laid down by parliament and they do not include what the court of appeal is saying.

‘I leave it to the registrar and the court of appeal to sort out. But what I cannot do is contravene an Act of Parliament myself. That I’m not going to do.’

He said that in an earlier case, the court of appeal, differently constituted, had ordered that the CJ, or if he should recuse himself from the matter, then a high court judge entrusted with the function, should allocate three judges to hear a particular matter.

Delegate

‘Clearly the court of appeal [in that matter] knew what the law is – the generation of those court of appeal judges, not these ones.’

In that earlier matter, where the CJ was a litigant, the court of appeal said the CJ should allocate the matter, but if he excused himself, then another puisne judge would do the job.

‘Because you cannot delegate statutory functions by way of a court order.

‘So, what I’m going to do here is just to excuse myself from allocating the case. I have nothing to do with what the court of appeal and the registrar is supposed to do. I just stick by the law. I’ll just excuse myself from re-allocating this matter. That is all.

Rubberstamp

‘Is that understood, counsel? I’ll stick to my statutory functions. … In the light of this order, I’m just going to excuse myself from re-allocating the case. I have nothing to do with that order. It is a matter between the registrar and the court of appeal. Is that understood? …

‘Initially, I was minded not even to come into court about the matter. But on maturer reflection I thought, for the record, so that even the nation should know, I’m not just going to rubberstamp what the court of appeal has said because I would actually be abdicating my statutory functions, and I cannot do that.

‘That’s why I posed the question: if a court orders a citizen to contravene a law, what is the recourse of that citizen?’

* 'A matter of justice', Legalbrief, 24 May 2022

Carmel Rickard

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