MASERU — The Law Society of Lesotho has requested Prime Minister Thomas Thabane to advise King Letsie III to set up a commission of inquiry to investigate the impasse in the judiciary.
The call comes two days after Court of Appeal President Justice Michael Ramodibedi was forced to postpone all cases in the January session after Chief Justice Mahapela Lehohla refused to release judges to sit in the Court of Appeal.
The Court of Appeal session had to be postponed to April.
In its letter delivered to Thabane yesterday, the Law Society listed eight reasons it says warrants the setting up of the commission.
The Law Society said the King must investigate “the constitutional anomaly of the structure of the Judicial Service Commission which is not inclusive of all the relevant stakeholders in the administration of justice in the Kingdom of Lesotho”.
The Society also called for the Court of Appeal to be transformed into a permanent court with permanent judges in order to facilitate the smooth and expeditious administration of justice.
“The legal profession is of the strong view that the institutional framework needs to be improved in order to cater for the masses of litigants who have endured the plight of their cases being heard on a seasonal basis — in the April session and October session,” says part of the letter, signed by Law Society president Advocate Monaheng Rasekoai.
“This position does not clearly suffice in view of the growing needs of our society in the commercial and various other spheres of social discourse,” it said.
The society also says the constitution has left a huge gap as it does not clearly define “the role of His Lordship the Chief Justice vis-à-vis His Lordship the President of the Court of Appeal”.
The Law Society said it was also worried with the “entrenched delay in the administration of justice particularly the delivery of judgments in the High Court”.
Lawyers say they want measures to be taken to improve the efficiency of the High Court in the delivery of justice.
“It is an axiomatic factor that ‘justice delayed is indeed justice denied”, it said.
The society is also concerned that although all High Court judges are ex-officio judges of the Court of Appeal, only a selected few “who are inclusive of legal practitioners cum judges are given the opportunity to serve in the Court of Appeal”.
The lawyers say they want a mechanism to enforce compliance with Section 123(1) (c) of the constitution which expressly says the Chief Justice and puisne judges of the High Court are ex-officio judges of the Court of Appeal.
They also want measures to put in “motion a rotational exercise of appearance which will cater for all High Court judges in the Court of Appeal”.
“There are no institutional structures put in place in order to sanction disciplinary measures against any members of the bench (the High Court and Court of Appeal) who engage in any form of misconduct which is not contemplated under the Constitution,” reads the letter.
“There is a strong and urgent need for an institutionalised Judicial Ethics Committee which shall oversee and sanction judicial accountability.”
The Law Society also wants better relations between legal practitioners and the bench.
“This will be greatly helpful in facilitating a platform for grievances between the bench as the arbiters of justice and legal practitioners as facilitators.”
It added that there is need to institutionalise the appointment of judges in the High Court and Court of Appeal “in a manner that caters for transparency and inclusivity of all the relevant stakeholders”.
“In particular, the appointment of judges cum legal practitioners is one huge stone in the shoe of the Law Society and has never been adequately addressed in all the quarters of the legal profession,” reads the letter.
The Law Society recommends that such a commission should consist of adequately trained people in the field of law and administration.
“A judge or two are required as one of the constituents of the said commission,” the letter says.
“The said commission need not be inundated entirely with people in the legal fraternity to avoid parochialism. It may also have a senior legislator, government bureaucrat and any other respectable citizen with an impeccable reputation nationwide.”
The lawyers also recommended that the commission’s report should be tabled before parliament because “the trend with commissions of enquiry is that government tends to overlook some aspects of their recommendations if they do not blend with their political views and or their policy”.
“It also goes without saying that there is an urgent call for constitutional reforms within the structural framework of the superior courts, in particular, the High Court and Court of Appeal.”
“The situation has been left hanging for an inordinate period of time and these measures must be undertaken in earnest.”