Resolve the stalemate

Last week, Chief Justice Sakoane Sakoane was emphatic in his rejection of an order by the Court of Appeal to allow the Registrar of the High Court to allocate cases to judges.

His decision is the clearest indication yet that all is not well in the judiciary and that the sector, so critical to our democratic project, could soon be plunged into fresh turmoil once again.

Justice Sakoane told the prosecution counsel last week that he will not comply with the directive by the Court of Appeal as it would mean violating the Constitution which he swore to uphold.

He said it was wrong for a panel of three judges sitting as the Court of Appeal to order the Registrar of the High Court to appoint a new judge to preside over a case in which he has been asked to recuse himself.

His bone of contention is that there is nowhere in the Lesotho constitution where a Registrar is allowed to allocate cases to judges.

While the judge might argue he is standing on a firm footing from a legal perspective, the issue is that this debate is likely to drag us back to the old days when judges would fight over the control of the judiciary.

It is too soon to forget the often hilarious yet tragic battles between Justice Mahapela Lehohla and the late Justice Michael Ramodibeli over who was senior.

While their battle was driven by ego and appeared vain, this new clash between Justice Sakoane and the Court of Appeal will likely be driven by principles of law and is likely more substantial.

Here is a judge who is rejecting an order by a superior court on the basis that the order is supposedly in breach of the Constitution.

The result is that we now have a stalemate.

We are not any way wiser as to how the judiciary will resolve this matter. But what we are clear about is that our judiciary will likely run into a fresh crisis after a period of relative stability.

We also know that any clashes between the Chief Justice at the High Court and the Court of Appeal on the other will likely harm the delivery of justice in Lesotho.

This is happening at a time when the judiciary is still battling to clear a huge backlog of cases some of them dating back 10 years ago.

As mentioned elsewhere in this issue, there is now a concerted effort initiated by Justice Sakoane to appoint acting judges to handle such matters so that they are quickly dispensed with.

Basotho are not interested in the constant power battles in the judiciary. All they want is to see justice delivered. That is extremely important in a country like Lesotho where inequalities are well pronounced.

It is often the poor and marginalised who need legal protection. But when the justice system is not operating at its optimal levels, the people’s basic rights are often trampled with disdain.

That is why we think it is absolutely important that we have a functional judiciary to defend and protect the poor.

In seeking to resolve the numerous challenges that have bedeviled the judiciary, we are happy to see the proposed amendments for the Constitution of Lesotho that will create one centre of power.

Under the proposal, the Chief Justice will be the head of the judiciary and that, in our opinion, will likely eliminate most of the problems we have seen the past two decades.