Independence of Lesotho's judiciary questioned
Report says JSC is open to political interference
A major new report has called into question the independence of the judiciary in Lesotho, arguing that the Judicial Service Commission (JSC) in particular is far too open to political interference.
Produced by the African Governance Monitoring and Advocacy project (AfriMAP) and OSISA, the report – Lesotho: Justice Sector and the Rule of Law – concludes that the JSC is compromised because the Prime Minister appoints all five of its members, including the Chief Justice, Attorney General and Chairperson of the Public Service Commission.
This opens the door for executive interference and so the report calls for urgent changes to the membership of the JSC – so that it includes some non-state actors, such as representatives of the Bar, the Law Society and civil society.
“It is important for any nation to ensure that it upholds a respected, representative and independent judiciary as a precursor to protecting its citizens from arbitrariness and impunity, by promoting a system of justice that is not only free from potential manipulation, but is also seen to be so,” said Ozias Tungwarara, Director of AfriMAP.
The study stresses that judicial independence is one of the cornerstones of the administration of justice but concludes that, while it exists in principle in Lesotho, it does not exist in practice.
The report cites instances where the government has violated the spirit – and in some cases – the letter of the law. For example, the study refers to a commission of inquiry that the government set up – in a clear breach of the separation of powers – to investigate the decision by some judges to release some people accused of trying to assassinate the prime minister in 2007.
The study also raises concerns over the government’s decision to disobey some court orders, including its failure to pay compensation to victims of its illegal actions, supposedly due to lack of resources. This disrespect for the law, claims the report, diminishes public trust in the judicial system and only serves to heighten the sense of impunity enjoyed by those in positions of power and authority.
The report also urges the government to focus on domesticating international and continental treaties that it has already signed, ratified and deposited – and cites laws that violate key principles, including the customary law, which perpetuates gender discrimination, and the Security Act 2010, which restricts the right to free assembly and demonstration.
Authored by Mamosebi Pholo, Managing Director of Pholo and Partners Consultants, the detailed report focuses on seven thematic areas:
- Lesotho’s obligations to human rights treaties;
- Government’s respect for the law;
- Management of the justice sector;
- Independence of the courts;
- Crime and punishment;
- Access to justice; and
- Donor relations.
It makes key recommendations in all these areas and urges civil society to take up the debate with the new coalition government in order to affect fundamental policy shifts and critical legislative reforms that will consolidate the rule of law in Lesotho.
This is the second of three major reports on Lesotho to be released this week. The others focus on Political Participation and Democracy, and the Effective Delivery of Public Education Services.