MASERU – The president of the Court of Appeal, Justice Michael Ramodibedi, says the Administration of the Judiciary Act (2011) undermines his authority as the head of the apex court in Lesotho.
His main gripe is with a section that says the Registrar of the High Court and the Court of Appeal shall not be subject to the direction or control of any person except “the Chief Justice in matters concerning the High Court and other courts”.
That section, he said, is totally different from the one which was in the first draft of the Bill which he had supported.
The first draft said the registrar could only be directed or controlled by the “President of the Court of Appeal in matters concerning the High Court and other courts”.
“The Act is plainly unworkable in several parts,” Justice Ramodibedi said at the opening ceremony of the Court of Appeal on Tuesday.
He said the inclusion of the section that gives the chief justice the power to control the registrar is hardly surprising because he, judges, magistrates and the Law Society of Lesotho were never consulted when the law was drafted.
Justice Ramodibedi and Chief Justice Mahapela Lehohla are engaged in a bitter battle to control the judiciary.
Both have laid claim to the title of the head of judiciary in Lesotho even though the constitution is vague on the issue.
The battle has played itself out in local and international fora.
In 2010 the chief justice appealed to regional chief justices to intervene in this struggle to be recognised as the head of the judiciary.
The Southern African Chief Justice’s Forum took up the matter with Prime Minister Pakalitha Mosisili but their appeals were dismissed.
Mosisili said instead of helping Justice Lehohla in his clamour for power they must advise him to start hearing court cases instead and deal with the huge backlog of cases in the High Court.
But that response has not helped ease the tension between the Justice Lehohla and Justice Ramodibedi.
Justice Ramodibedi’s attack on the Administration of the Judiciary Act (2011) on Tuesday is only a continuation of that struggle for supremacy between the two that has rocked the judiciary since 2009.
In his speech Justice Ramodibedi said he hopes “sanity will prevail” and the Act revisited because it causes “confusion and unhappiness” in the judiciary.
He said he was worried that his call for the appointment of a registrar of the Court of Appeal has not been considered in the new law.
The Administration of the Judiciary Act (2011) inexplicably failed to make provision for the Registrar of the Court of Appeal, contrary to the Constitution, he added.
He also has problems with Section 9 of the Sixth Amendment to the Constitution which removed Appeal Court judges from the list of senior officers whose salaries are paid from the government’s Consolidated Fund.
“To say I was horrified to see what is contained in Section 9 of the Amendment is probably an understatement”, Ramodibedi said.
“I was not consulted when that section was drafted, despite the fact that it affects the court most drastically.”
“In fact this means that the new section has removed one of the pillars of the independence of the judiciary in so far as the Appeal Court judges are concerned, namely financial security of payment of salaries or allowances.”
“It is precisely for this reason that subsection 115 (3) of the Constitution provides that the salaries of the office holders under the section shall not be altered to their disadvantages after their appointments.”
In his view, one or two things could have happened when section 9 of the Sixth Amendment to the Constitution was drafted.
It is either the omission was inadvertently made or was done deliberately in order to undermine the Court of Appeal.
He said in fairness to parliament, the “Statement of Objects and Reasons of the Sixth Amendment to the Constitution Act 2011” did not indicate the omission.
This, he added, gives rise to a reasonable suspicion that the Bill might have been sneaked in deliberately.
“I reiterate that the Court of Appeal is no extension of the High Court as is the highest court in the land and a separate institution from the High Court.”
Speaking at the same occasion Law Society president, Monaheng Rasekoai, said it was important for judicial officers to be accountable.
“The notion of accountability permeates public life and judicial officers are servants of the public,” he said.
“We clearly live in an era of greater public demand for accountability of the judiciary, it is clearly no longer considered a sacrosanct and inviolable haven of its occupants,” Rasekoai observed.