MASERU — Prime Minister Pakalitha Mosisili has told a regional chief justices forum to stop fighting Chief Justice Mahapela Lehohla’s seniority battles with Court of Appeal president Justice Michael Ramodibedi.
Mosisili told the Southern African Chief Justice’s Forum that instead of supporting Justice Lehohla’s clamour for seniority they must remind him to deal with contested matters.
The High Court is saddled with a huge backlog of cases and stakeholders in the judiciary, like the Law Society of Lesotho, have called on the chief justice to take the lead by hearing contested cases. The chief justice last heard contested cases in 2009.
Mosisili was responding after the forum, a group of 15 chief justices from southern African countries, earlier this year wrote to him complaining about a March 2009 Cabinet directive that said the most senior judge in Lesotho was the Court of Appeal president and not the chief justice.
The directive followed a bitter struggle between Justice Lehohla and Justice Ramodibedi over who should appear first in protocol.
The fight even played itself out at some public gatherings, much to the government’s embarrassment.
When the Cabinet confirmed that Justice Ramodibedi was senior, Justice Lehohla, who was appointed in 2002, aggressively lobbied the forum to intervene and pressure Mosisili’s government to reverse the directive.
Justice Lehohla’s gripe was that before Justice Ramodibedi’s appointment in June 2008 he had always been considered the most senior judge and therefore the head of the judiciary in Lesotho.
He therefore considered the directive a deliberate effort to strip him of his privileges and an attempt by the Cabinet to interfere with the judiciary’s independence.
After much lobbying through letters and verbal complaints at the forum’s meeting, Justice Lehohla managed to persuade the chief justices to fight in his corner.
And earlier this year the forum’s chairman Justice Ernest Sakala, who is the Chief Justice of Zambia, wrote to Mosisili querying the Cabinet directive.
In that letter Justice Sakala told Mosisili that the forum was concerned that the cabinet had deprived Justice Lehohla of a privilege he had always enjoyed.
Before Justice Ramodibedi’s appointment Justice Lehohla appeared first in protocol.
Justice Sakala said it was unfair that Mosisili’s cabinet had taken that privilege from Justice Lehohla when it announced that Justice Ramodibedi was the country’s most senior judge.
He said the forum was of the view that the chief justice’s privileges should be protected by the law.
The cabinet, Justice Sakala pointed out, should not have interfered with the status quo because in doing so it robbed Justice Lehohla his “privilege precedence”.
Justice Sakala said although the constitution was vague on the issue the forum believed that the chief justice should be senior to the president of the Court of Appeal.
He added that the forum viewed the Cabinet directive as an interference with the independence of the judiciary.
He then suggested that the constitution should be amended to make the chief justice the head of the judiciary.
The Lesotho Times can reveal that Mosisili responded on June 28, 2011 with a stinging letter that accused the forum of interfering with Lesotho’s protocol matters and chastised Justice Lehohla for being petty.
In the letter, seen by the Lesotho Times, Mosisili said he found it “incredible” that the forum had concluded that the chief justice is senior to the Court of Appeal president without hearing the government’s side of the story.
He said he found it amiss that Justice Sakala had said Lesotho’s constitution was vague on who is senior between the two judges but had not bothered to mention that the same constitution also says the Court of Appeal is the apex court in Lesotho.
This, Mosisili noted, means that the person who is the Court of Appeal president is therefore the country’s most senior judge.
The prime minister expressed disappointment that the forum sought to interfere with “matters of protocol”.
The executive, Mosisili wrote, had already decided that in terms of protocol the chief justice is junior to the Court of Appeal president.
The forum’s argument that the chief justice’s privileges must be protected by the law is equally unfounded because he never enjoyed that privilege in the first place, Mosisili said.
He argued that the constitution of Lesotho was clear that the Court of Appeal was the apex court in Lesotho.
Therefore, he added, the executive had not interfered with the judiciary when it issued that directive.
To support his assertion Mosisili quoted section 123 (2) of the constitution which says the judges of the Court of Appeal be “the President” (a) and “the Chief Justice and the puisne judges of the High Court ex officio”.
Mosisili also scoffed at the forum’s claim that Cabinet had deprived Justice Lehohla of his “privilege precedence”.
He said even if he were to accept that Justice Lehohla enjoyed that privilege it was clear that he did so by “default”.
Justice Lehohla, Mosisili charged, appeared first in protocol because all the Court of Appeal presidents before June 2008 were foreigners who were not resident in Lesotho.
There was no need to name them in protocol because they were never there to attend state functions, he said.
He explained that although he was thankful for the forum’s suggestion that the constitution must be amended he was of the idea that the best solution would be to combine the offices of the chief justice and Court of Appeal president so that one person becomes the head.
The prime minister then went on to launch a veiled attack on Justice Lehohla, accusing him of not hearing contested matters in the High Court.
He said the chief justices must call Justice Lehohla “to order” and advise him to “take contested matters” in the High Court.
“This is something he has astonishingly failed to do in the past nine years,” Mosisili said.
He also told the forum to advise the chief justice to get “real” and stop pursuing such unimportant issues.
He also told the forum that the cabinet directive that had clarified the protocol ranks of the chief Justice and the Court of Appeal president enjoyed the support of the legal fraternity.
The prime minister’s office yesterday confirmed that such a letter existed but said the prime minister was not interfering with the independence of the judiciary.
The office said the prime minister was merely clarifying that matters of state protocol are a prerogative of the executive as stipulated by the constitution.
This paper understands that the 2009 directive was not the first time that Cabinet had clarified this protocol ranking.
On February 3, 1994 the Basutoland Congress Party government issued a similar directive stating that the Court of Appeal president is senior to the chief justice in protocol.
Advocate Zwelakhe Mda, the president of the Law Society of Lesotho, said the clashes between chief justice and the Court of Appeal president were undermining the judiciary’s integrity.
“These clashes fracture the image of the judiciary,” Mda said.
“It does not reflect positively on the judiciary when the two judges who are supposed to be the heads are seen to be quarrelling. This becomes particularly damaging when they are fighting over a petty issue like who is supposed to be cited first at state functions”.
“How can the judiciary be trusted with anything when its leaders are fighting over such petty issues? This battle over seniority does not improve the efficiency of the justice delivery system in this country. That this is happening at a time when there are serious problems in the judiciary is scandalous.”
The dispute, Mda said, has now reached a stage when it should be considered to be bringing the judiciary into disrepute.
“As the Law Society we believe that we will be failing in our duty if we don’t intervene. We have to do something about this matter and we will.”