Independence and accountability of the judiciary in Lesotho : the need for reform of the constitutional processes for appointment, discipline and removal of judges

• Author: I. Shale
• DOI: 10.10520/EJC-110b362dc6
• Published date: 01 September 2018
• Date: 01 September 2018
• Record Number: lesotho_v26_n1_a6
• Pages: 166-193

INDEPENDENCE AND ACCOUNTABILITY OF THE

JUDICIARY IN LESOTHO: THE NEED FOR REFORM OF THE

CONSTITUTIONAL PROCESSES FOR APPOINTMENT,

DISCIPLINE AND REMOVAL OF JUDGES

Shale I.



Abstract

This article analyses the constitutional processes of

appointment and removal of judges in Lesotho and

benchmarks same against the international standards and best

practices. It argues that by conferring powers to appoint and

remove heads of the judiciary to the Prime Minister alone, the

Constitution leaves room for political manipulation of the

appointment and removal of judges contrary to international

standards contained in the international human rights

instruments to which Lesotho is a party as well as standards

contained in the UN Basic Principles on the Independence of

the judiciary and the Principles and Guidelines on the Right

to a Fair Trial and Legal Assistance in Africa. It concludes by

recommending that the Constitution must be amended and

aligned with international standards on appointment,

discipline and removal of judges.

INTRODUCTION

Independence of the judiciary is one of the fundamental pillars of

democracy, respect for rule of law and protection of human rights.1

 LLB (NUL), LLM (UP), PhD (Wits University), Lecturer, National

University of Lesotho, Attorney of the Courts of Lesotho.

This article is drawn from the ICJ/AJJF fact-finding mission in Lesotho in

which the author was a rapporteur (with further elaboration in the article).

1 H Barnett Constitutional and administrative law(2017) 83.

166 LLJ Vol. 26 NO. 1

Independence of the judiciary is firmly rooted in the principle of

separation of powers which is articulated by Montesquieu, the

French philosopher whose work contributed to political theory that:

When the legislative and executive powers are united in

the same person or body, there can be no liberty, because

apprehension might arise lest the same monarch or

senate should enact tyrannical laws, to execute them in a

tyrannical manner. Again, there is no liberty if the

judiciary be not separated from the legislative and

executive. Were it joined to the legislative, the life and

liberty of the subject would be exposed to arbitrary

control; for the judge would then be the legislator. Were

it joined to the executive power, the judge might behave

with violence and oppression. There would be an end of

everything, were the same man and the same body,

whether of the nobles or the people, to exercise those

three powers, that of enacting the laws, that of executing

the public resolutions, and of trying the cases of

individuals.2

Russel defines separation of powers as first and foremost the

absence of certain connections between the judiciary and other

components of the political system.3 When addressing requirements

2 B De Montesquieu Spirit of laws translated by T Nugent in 1752. Available

on

https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/montesquieu/spirit

oflaws.pdf [Accessed 20 July 2018]. See also J Story & TM Cooley

Commentaries on the constitution of the United States: With a preliminary review

of the constitutional history of the colonies and states before adoption of the

Constitution (2008)377.

3 Russel PH ‘Toward a general theory of judicial independence’ in Russel

PH & O’Brien DM (eds.) Judicial independence in the age of democracy: Critical

perspectives from around the world (2001)2.