The political role of lawyers against politicians…

Monaheng Seeiso Rasekoai

The scope that Lesotho’s legal system offers for the expression of the rule of law is largely handicapped if not compromised at present mainly because the politicians have successfully infiltrated all spheres of professional entities including the legal profession. Lesotho has over the years given birth to a breed of lawyer-cum-politician and politician-cum-lawyer and this trend was accepted without any question from the legal professionals themselves.

The view that the present author holds and shall hold for a considerable period of time until convinced otherwise is that a lawyer cannot be both without compromising the ethics of legal practice.

By legal professionals in this context one needs to include all law graduates who function as law officers from within the ranks of the government bureaucracy. This would include all those whose prime motivation is to please the political appointees in power and not necessarily the realization of principal values and ethos of the rule of law – for reward of promotions and fringe benefits which come with the territory,

The painful reality is that lawyers who form part of the government bureaucracy make an informed decision to isolate themselves from policy-making and devote most of their time seeking to appease the policy-makers and making sure that existing procedures are observed.

Those who dare pose questions on policy issues are branded ‘political’. The tension between lawyers representing the government and those in private practise is perhaps motivated by the fact that the members of public bar account to politicians and technocrats whilst the private practitioners account directly to the ordinary folk.

Lawyers in private practice intimidate the established institutions of government be it the executive, the legislature or any government department or ministry through its agents.

In this context, often at times legal practitioners in private practice are falsely seen as drivers of a political agenda not as mere professionals with a desired end of facilitating the invocation and perhaps realization of the rights of their respective clients or litigants.

This view is harboured fully alive to the glaring reality that indeed the state has rights too but those rights cannot be realised at the expense of an individual’s right. Legal advisers of corporate entities and parastatal organisations whose primary objective has since been left wanting in facilitating the notion of distributive justice and their role is evenly compromised because of the domination of politicians in the relevant sphere as well.

The reason and perhaps prime motivation has always been that in a volatile economy like that of Lesotho, the government is clearly the prime source of corporate life and swallows up not only the political space but also the commercial landscape.

The ripple effect of this endeavour is that it has clearly yielded a breed of legal practitioners who dance to the tune of the holders of the reins of power. The influence of lawyers on political ideas from within the ethos of their professional endeavours is largely compromised because a certain crop of legal practitioners in this country has advisedly sought the mobilization of political ideas not through elaboration of doctrines which justify the exercise or limitation of state power and the hegemony of ruling classes and the resultant incorporation of legal ideas into the language of political argument. Lawyers in this context are themselves contestants for power and not the drivers of the balance of power as embodied in the supreme law of the land.

Legal professionals particularly those who form part of the judiciary are clearly compromised and vulnerable mainly because of the evident polarization of the legal profession which is by and large dominated by factionalism and cronyism.

One could even suggest that the political climate prevailing in the country of late has clearly necessitated the fading role of lawyers and or all legal professionals as constitutional architects.

Lawyers’ role and perhaps influence on political ideology is but part of the role they play in establishing a constitutive framework of rules for the political system. One tony intellectual once mentioned that lawyers are plumbers of politics.

The main shortcoming with the metaphor is that it restricts the role of lawyers to that of professionals who repair leaks and holes, but the glaring reality is that they also help design and construct the building itself.

Lawyers’ role cannot be restricted to managing waste or handling a crisis in a constitutional setting. With the current state of affairs lawyers in this country have to ponder over the issue of whether they are operating in a climate which is conducive for the realization of the basic rights of ordinary people or whether they have relegated themselves to the roles of self-serving professionals who dance to the tune of politicians and ordinary careerist politicians whose prime motivation lies in self-aggrandisement achieved by material gains.

The enquiry should extend further to explore whether the institutions of law enforcement beginning with the police, the defence forces, the legal practitioners themselves and the members of the judiciary are fully functional and operating in a ‘professional environment’ which is conducive for expression of the ethos of the rule of law.

For a period of no less than three years The Labour Court of Lesotho has been confronted with daunting challenges and the politicians who hold the reins of power have either met this challenge with open-ended inertia or complacency for want of a better word or phrase.

The status of the labour court at present has largely compromised the ordinary working class and very little if not limited effort has been done to arrest the situation by the stakeholders. The inordinate delay in the issuance of written judgements in the High Court has been a chorus sung by litigants, practitioners and the society at large.

The open efforts of the executive to seize control of the judiciary and to manipulate the arrangement of the superior courts in order to sanction patronage goes without saying but the real challenge still remains on how legal professionals themselves can mobilize and stand in unison against the interference of the politicians in the professional arrangement sanctioned by the constitution and their regulatory statutes.

The waning influence of lawyers in Lesotho’s jurisdiction is further compounded by the fact that the notion of engagement between state actors (politicians) is driven by partisan political propaganda instead of national policy.

Challenges facing the administration of justice in the Kingdom of Lesotho cannot be subjected to the notion of partisan political correctness because the system is failing across the board irrespective of the political party one belongs to.

Lesotho’s political climate is hovering under a cloud which completely negates the democratic process because there is never any room for engagement even among legal practitioners themselves.

Lawyers themselves frequently brand each other along political party lines instead of being seen as instrumental drivers of the public policy environment. Even politicians themselves romanticize the notion of owning a certain group of so-called influential lawyers whose allegiance is to them but not the ethos of the rule of law or the constitution as the supreme law of the land.

The integrity of legal professionals in any given setting be it in the public bar or private bar is dominated and perhaps compromised by this entrenched and institutionalized course of self-serving ends. Under this cloudy environment, lawyers themselves decide to forget that democracy is, by definition, a system in which the ‘discussion’ period never ends, since lawyers themselves by virtue of their professional work are enjoined to question whether the government is acting appropriately as against ordinary citizens. Lawyers no longer agree to disagree and to engage intellectually on all spheres of public policy environment. There is an open and brazen fragmentation which has been fuelled by vested interests. This environment is very detrimental because lawyers who disagree with people in power or those whose affluence has secured their place in the political setting will either withhold their co-operation, subverting official decisions rather than challenging them or will confront government rather than debating and engaging with it. The disorganization of the legal profession counts as the most beneficial tool for politicians because politicians clearly benefit in a disorganized setting where the rule of law is compromised.

Politicians in any given country thrive in a setting where their actions are never brought to book or under the radar. The administration of institutions that seek to realize the dynamics of the rule of law were at one point remotely controlled by politicians be it members of the executive or legislators but of late the most daunting and perhaps horrendous reality is that they directly intimidate all spheres of the legal profession, be it members of the judiciary, lawyers and other subordinate institutions and its agents thereof.

Legal concepts are of late often in conflict with the approach of the ambitious politicians who act as if the state and its apparatus is private property. Politicians, inclusive of those who can safely be branded as part of Lesotho’s intelligentsia, pretend not to understand the limits on the exercise of their power.

When private legal practitioners endeavour to explain these limits, friction develops and the lawyer is either branded along partisan political lines or such an endeavour is practically made to be difficult for the relevant lawyer to professionally participate in making public policy contributions through litigations.

In reality, one cannot ignore that the practice of the law is a political exercise and the court system is but part of the power structure. The interpretation of legal norms is not free from specific value judgements.

Thus a political content is inherent in decisions about which types of disputes the courts adjudicate and which they refuse to hear, in the way the judges resolve disputes, and in the way some types of disputes are prevented and not other types.

But an issue that warrants introspection and perhaps discussion by lawyers in this country is whether they have successfully identified their role in the public policy environment and how they should manage their relations with politicians irrespective of whether it is those in power or in opposition. It is that relationship that can destroy and perhaps distort the notion of a professional and a career politician who has no statutory code of ethics.

• Monaheng Rasekoai is a lawyer based in Maseru. He writes in his personal capacity