EFFECTING JUDICIAL REFORMS TO SECURE THE STABILITY, INDEPENDENCE AND ACCOUNTABILITY

EFFECTING JUDICIAL REFORMS TO SECURE THE STABILITY, INDEPENDENCE AND ACCOUNTABILITY OF THE JUDICIARY TO GUARANTEE THE RIGHTS OF ALL AT ALL TIMES

AN INTERIM REPORT OF THE FACT-FINDING MISSION BY THE AFRICA JUDGES AND JURISTS FORUM TO THE KINGDOM OF LESOTHO,

 7^TH – 12^TH MAY 2018

1          Introduction

This Report is an outcome of a fact-finding mission convened by the African Judges and Jurists Forum (AJJF) in the Kingdom of Lesotho from 7 to 11 May 2018. The fact-finding mission was a follow-up of the recommendations which were made in 2013 following a similar Mission of that year, whose purpose was to gather facts concerning a crisis in the judicial leadership in Lesotho. The crisis had been attributed to a number of factors including lack of clarity in the Constitution, as to who, between the Chief Justice and the President of the Court of Appeal, is the head of the judiciary, lack of transparency in the appointment, discipline and removal of judges in general, non-representation of other stakeholders such as the Law Society, legal academics, civil society organisations and politicians in the Judicial Service Commission (JSC). The Mission of 2013 comprised the following members:

1. Retired Chief Justice Sandile Ngobco of South Africa
2. Retired Chief Justice Augustine Ramathan of Tanzania
3. Retired Chief Justice Justin Nganunu of Botswana (deceased)
4. Martin Okumu Masiga, Africa Deputy Director of the International Commission of Jurists
5. Brian Penduka, Africa Programme Legal Consultant, International Commission of Jurists

The 2013 Fact – Finding Mission made the following key recommendations:

1. That the Constitution of Lesotho should be amended to address, expressly, the question of the head of the judicial branch of government; that the said amendment must specify that the head of the judiciary is the Chief Justice, who, in terms of such amendment, must preside at the apex court, while the head of the High Court should have the title of either the  President of the High Court, Judge President, Principal Judge or other suitable title;

2. That consideration should be given to restructuring the Judicial Service Commission so as to ensure that the major stakeholders in the justice system are represented in it. These should at least include, inter alia, the Chief Justice, the Judge President, representatives from the Executive and the Legislature, the Law Society, Legal Academics and Civil Society;

3. That consideration should be given to whether or not the conduct of one or both of the two judges merits investigation under sections 121 and 125 of the Constitution, and in a manner consistent with international standards by an independent and impartial tribunal, whose ruling is subject to independent review; and

4. That urgent comprehensive review of the administration of justice in Lesotho be carried out in order to identify the root causes of the problems afflicting the justice system and to set out a plan for strengthening the harmonious administration of justice, advancing judicial independence, enhancing access to justice and strengthening public confidence in the administration of justice

The 2018 Fact – Finding Mission to the Kingdom of Lesotho consisted of the following members:

1. Retired Chief Justice Mohammed Othman Chande of Tanzania; member of the Judicial Elders’ Council of the Africa Judges and Jurists’ Forum (AJJF)
2. Retired Chief Justice Ernest Sakala of Zambia; member of the Judicial Elders’ Council of the Africa Judges and Jurists’ Forum (AJJF)
3. Arnold Tsunga, Africa Director of the International Commission of Jurists
4. Martin Okumu Masiga, Secretary General of the Africa Judges and Jurists’ Forum (AJJF)
5. Mary Pais Da Saliva, Legal Advisor, International Commission of Jurists

2          Objectives of the 2018 Fact-Finding Mission

The main objective of the Fact-Finding Mission of 2018 was to follow up the extent to which Lesotho had implemented recommendations made five years back and to evaluate its compliance with regional and international commitments relating to the process of appointment, discipline and removal of judges.

3          Main Findings

From the interviews with the relevant stakeholders and observations during its five days in Lesotho, the Mission made the following main findings which are discussed in more detail in the next sub-section:

1. That the recommendation on investigation of the conduct of the then Chief Justice and President of the Court of Appeal had been implemented and consequently the two office bearers resigned from their positions and were replaced by Chief Justice Nthomeng Majara, who was appointed in 2012 and Justice Kananelo Mosito who was appointed in 2014, but removed and or resigned in December 2016, and  re-appointed in June 2017, which reappointment was subjected to a constitutional challenge and is currently awaiting appeal;

1. That the 2013 recommendations for amendment of the Constitution and restructuring of the JSC had not been implemented. Therefore procedures for appointment of Chief Justice Nthomeng Majara and President of the Court of Appeal, justice Mosito were also made by His Majesty the King, acting on the singular advice of the Prime Minister, a practice which the 2013 Mission had identified as unsatisfactory and opening the judicial appointment process to real or perceived political influence;
2. That the recommendation to conduct a comprehensive review of the administration of justice in Lesotho, in order to identify the root causes of the problems afflicting the justice system, was partially implemented. In line with this recommendation and the SADC recommendations on broader national reforms in Lesotho, there has been established a Judicial Reforms Committee. It is composed of judges, who have developed a number of proposals for reform captured in their document: Proposals on Judicial Reforms. The proposals will form part of the overall constitutional reform initiative which is currently in process ; and

1. That the structural issues in the appointment in the judiciary has shaped an unstable relationship between the judiciary and the executive and has led to polarisation amongst judges, between the judges and the legal practitioners and also amongst legal practitioners.
2. The call to enact constitutional changes for the judiciary to be led by a Chief Justice who sits and presides over the highest Court in the land was not implemented. This had been seen as important to avoid unnecessary rivalry and conflict between the Chief Justice and President of the Court of Appeal. In the past, noxious relations between these two most prominent judicial offices undermined the dignity and effectiveness of the judicial system.
3. That the relationship between the judiciary and the Law Society of Lesotho were tense. There was limited communication and collaboration between the two institutions, which bred an atmosphere of suspicion. The current Law Council had not had a meeting with the Chief Justice or the Judiciary. This environment could potentially spiral into hostility between the two institutions. This would inhibit their ability to stand together against incursions into judicial independence, access to justice, human rights and the rule of law, which is their core mandate.

3.1       Appointment Procedures

According to international standards, a transparent and fair process of appointment of judges is a pre-requisite to ensure independence and impartiality of the judiciary as well as all citizen’s equal access to justice. The Mission found that the appointment process is neither fair nor transparent with negative impact on independence of the judiciary and the peoples’ access to justice.

Sections 120 (1) and 124 (1) of the Constitution, confer powers of appointment of the Chief Justice and the President of Court of Appeal upon  the King, acting on the singular advice of the Prime Minister. The Mission is of the considered opinion that appointment procedures outlined in these sections do not adhere to international standards contained in Article 14 of the ICCPR and Articles 7 and 26 of the African Charter on Human and Peoples Rights, all of which protect the right to a fair hearing and guarantee independence of the courts. These Articles require that appointment of judges be done through a transparent and non-discriminatory process and on the basis of prescribed criteria based on merit and integrity.[1]

The limitation of appointment powers to the Prime Minister also fails to adhere to the UN Basic Principles on the Independence of the Judiciary and Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, both of which provide that the methods of judicial selection must safeguard against judicial appointments for improper motives.[2] The exercise of this power by the Prime Minister alone leaves a strong perception that his recommendation of a certain individual for appointment, as either Chief Justice or President of the Court of Appeal, is politically motivated.

In order to avoid a possibility of political manipulation of the appointment process, the Human Rights Committee and the Special Rapporteur on the independence of judges and lawyers, have repeatedly recommended the use of bodies that are independent from the Executive,[3] inclusive and composed mainly (if not solely) of judges and members of the legal profession.[4] However, in Lesotho, the JSC is not involved in the appointment of the Chief Justice and the President of the Court of Appeal.

Another problem identified by the 2018 Mission is lack of plurality in the JSC itself. To ensure representation within the Judicial Service Commission, the Mission reiterates the recommendation of the 2013 Mission that membership of the Judicial Service Commission be opened up to include other members, other critical stakeholders, including the Law Society of Lesotho, the faculty of law, civil society representative, magistrates; and others as may be necessary to secure the independence and accountability of the judiciary in Lesotho.

To advance the independence of the Judicial Service Commission, these members should be elected by the bodies to which they belong and not by the Prime Minister or the Chief Justice. For example the representative of the Law Society should be elected by members of LSL or nominated by the LSL and the same should be done for the Magistrates, Judges and Civil Society representatives.

The 2018 Mission noted that the appointment of judges of the High Court is done by the King on the advice of the JSC. As indicated earlier, the Judicial Service Commission is not representative in that it is composed of four members being the Chief Justice who is its chair, Chairperson of the Public Service Commission, the Attorney General and one Judge. All these officials are effectively appointed by the Prime Minister or closely work with the Chief Justice, resulting in strong perceptions that the appointment process of judges of the High Court is also opaque, not transparent and open to cronyism.

In the opinion of the 2018 Mission, the procedures for the appointment of judges in general, and the Chief Justice and the President of the Court of Appeal in particular, has led to devastating consequences in the administration of justice in Lesotho. For instance, due to a number of court cases which challenged the appointment of both the substantive and Acting Presidents of the Court of Appeal this position has become vacant rendering that court dysfunctional for the last 2 years. The result is that all litigants who expect justice from the Court of Appeal have to wait for the leadership impasse to be resolved before they can get their matters heard.

The 2018 Mission noted that the opaque appointment procedure has also led to friction or strong perception of friction between the Executive and the Judiciary. But more seriously, it undermines the legitimacy of judges and public confidence in them.

Consistent with ever-growing citizen demands and best practices on transparency, accountability and popular participation in public affairs, authorities in Lesotho should consider, seriously, making the nomination and appointment of judges an open process. Some of the best practices in the region depict a mix of the following elements:

(a) Nominations may be sought from the legal fraternity such as the Law Society, faculties of law, individual lawyers, the Attorney General’s Office, the Director of Public Prosecution or equivalent office;

(b) Advertisements are made in the mass media calling for applications from duly qualified and interested lawyers;

(c) Shortlisted candidates are interviewed by the Judicial Service Commission. The interview may be open or closed.

(d) A narrow list of successful candidates is drawn by the JSC for submission to to the Head of Government/State, who nominates from the list, which he submits to parliament for Parliamentary Confirmation Process. This takes the form of pre-appointment scrutiny hearings. Lawyers and any members of the public who know a reason why the nominee must not be confirmed can appear before the Commission and make submissions with evidence to support their contention.

(e) It would follow in the case of Lesotho, that the Prime Minister would submit the final names to the King for appointment after the parliamentary confirmation.

3.2       Disciplinary Procedures

The Constitution of Lesotho does not provide for discipline of judges but for their removal. Section 121 (3) of the Constitution provides that:

The Chief Justice and any other judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour. (emphasis added)

The Constitution is silent as to the nature of misbehaviour for which a judge may be removed. Non-prescription of acts which constitute judicial misbehaviour fails to conform to the international requirement that in order to preserve independence of the judiciary while at the same time ensuring judicial accountability, there should be enshrined in the law, a judicial code of conduct, drafted primarily by judges and members of the legal profession, which serves as the basis for the determination of cases of alleged judicial misconduct.[5] Absence of this Code of Conduct which prescribes disciplinary offences, procedures to be followed as well as appropriate sanctions other than impeachment, therefore leaves room for political impeachment of judges for any offence which may not, for all intents and purposes, be linked or related to the judges’ integrity and ability to discharge their judicial function.

• Impeachment Procedures

Impeachment of the Chief Justice and the President of the Court of Appeal is initiated by the Prime Minister in terms of sections 121 and 125 of the Constitution. An international requirement is that the body responsible for the discipline and dismissal of judges should be independent of the Executive,[6] inclusive and composed mainly (if not solely) of judges and members of the legal profession.[7] However, in Lesotho sections 121 (6) and 125 (6) of the Constitution empower the Prime Minister to establish the impeachment tribunal at his own initiative. This strips the Judicial Service Commission of one of its most central mandates, according to best practice within the region as well as internationally.

In addition, this process fails to comply with international standards on fair trial as the Prime Minister chooses people to preside on a case in which he is a complainant. The procedure also leaves room for political manipulation in that the Prime Minister may initiate impeachment proceedings simply to get rid of a Chief Justice or President of the Court of appeal in favour of someone who is politically aligned or sympathetic to his own political party or any other extra-constitutional motive.

4          Recommendations

In the light of the above findings and with the view to strengthen independence and accountability of the judiciary in Lesotho, the Mission makes the following recommendations:

1. That the Constitution be amended for purposes of:

(a) Establishing open, transparent, participatory and competitive judicial appointment procedures.

(b)   Expanding the mandate of the Judicial Service Commission to empower it to make recommendations to the Prime Minister for the establishment of an independent tribunal to inquire into the dismissal of any judge including the Chief Justice and the President of the Court of Appeal.

(c)   Expanding the composition of the Judicial Service Commission to include other key stakeholders such as the law society, civil society, magistrates, the high court, the court of appeal and the legal academia. The representatives of these sections of the legal fraternity or society must be chosen by the relevant sections of the legal fraternity or society themselves and not imposed upon them by any authority.

2. That a judicial code of conduct be established to prescribe acts, which constitute judicial misbehaviour, disciplinary procedures and appropriate sanctions be spelt out.

3. That Impeachment of judges should be done in accordance with international standards on due process and fair hearing and should be resorted to, for specified gross offences which impact on the integrity of the judge and his or her ability to carry out judicial functions. The impeachment proceedings must be adjudicated upon by an impartial, independent and competent tribunal which is not subject to influence by the executive.

4. Lesotho should consider the restructuring of the court system. In conformity with conventional and best practice, the ultimate head of the judiciary should be the Chief Justice. This must be spelt out in the constitution of the country, with clarity. The Chief Justice must be a judge of the highest court in the land and preside over that court. The High Court should be headed by a Principal Judge or Judge President who should be the administrative head of that tier of the court hierarchy.

5. That a practice of regular bar-bench dialogue be established to improve the relationship between the legal practitioners and judicial officers to diminish toxic relations that are being exploited to undermine the independence of the judiciary in Lesotho.

The main report of the mission will be published and made publicly available

For more information please contact Martin Okumu Masiga, AJJF Secretary General on okumu-masiga@africajurists.org

About the Africa Judges and Jurists Forum (AJJF)

The AJJF is a pan African network of judges and jurists who are committed to promoting the rule of law and development in Africa. It works has 4 main areas of work: Judicial Development and Reform; Elections and the Rule of Law; Crisis Intervention and the Rule of Law; and Economic Transformation and the Rule of Law. The AJJF is registered under SA law and its membership represents all legal systems in Africa. Its organs include the General Assembly, the Judicial Elders’ Council (JEC) and the Board. It has a Secretariat headed by a Secretary General.

[1] See Human Rights Committee, General Comment No.32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc.CCPR/C/GC/32 (2007), para. 19; UN Basic Principles on the Independence of the Judiciary, principle 10; See also, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(h)-(j); See also Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), para. 32 and Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Preliminary Report to the Human Rights Commission on a mission to Ecuador, UN Doc. E/CN.4/2005/60/Add.4 (2005), para. 5(d)

[2] UN Basic Principles on the Independence of the Judiciary, Principle 10; See also Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article A.4(h)

[3] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Article A.4(h) encourages “the establishment of an independent body”. Also e.g., Concluding Observations on the Congo, CCPR/C/79/Add.118, para. 14; Concluding Observations on Liechtenstein, CCPR/CO/81/LIE, para. 12; Concluding Observations on Tajikistan, CCPR/CO/84/TJK, para. 17; Concluding Observations on Honduras, CCPR/C/HND/CO/1, para. 16; Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), para. 12; Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), para. 20; Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 11; Universal Charter of the Judge, Article 9

[4] Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), para. 28-29. See International Commission of Jurists, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors – Practitioners’ Guide, No. 1 (2007), pp. 45-48

[5] UN Basic Principles on the Independence of the Judiciary, Principle 19

[6] Human Rights Committee, Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), para. 12; Human Rights Committee, Concluding Observations onHonduras, UN Doc. CCPR/C/HND/CO/1 (2006), para. 16; Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), para. 20

[7] Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), para. 28-29