News Analysis

“LAWFARE: LESOTHO’S JUDICIARY AS A SITE FOR POLYCENTRIC AND POLITICAL QUESTIONS STRUGGLE: CAN WE SURVIVE THE MIGRATION OF POLITICS TO THE COURTS?”

Writes Tekane Maqakachane

INTRODUCTION
I am humbled that I deliver this address in this Court today. I should have said “I am delighted’ but I dare not say as I would be betraying the concerns and countless questions that perennially dog our legal minds as we continue to witness our young democracy steadily but surely slighting towards the culture inimical to our hard worn democratic aspirations, principles and values.

This Session of the Court of Appeal should have resumed from the 15TH April 2019. That was not to be as we were informed that there are no funds to sustain that Session. The Law Society, taking after the Manner of health practitioners, urgently acted to “quarantine and decontaminate’ the situation, while the diagnosis and appropriate action are being considered.

While the issue of the “suspension” of the April 2019 Session of the Court of Appeal and other concomitant issues bedevilling our entire judiciary are the focus to this address, the central them and message for this Session is a reflection on the ability of our courts, the superior courts, to survive the reality of becoming the site of struggle for polycentric policy issues questions — The Lawfare.

“Lawfare” has come to bedescribed as “a form of war consisting of the use of the legal system against an enemy, such as by damaging or delegitimizing them, tying up their lime or winning a public relations victory.”

‘The concept of lawfare was first brought to the attention of the modern world in a 2001 essay by Major General Charles J. Dunlap, Jr., Deputy Judge Advocate General for the U.S. Air Force. In that essay, Dunlap defined ‘lawfare” as “the use of the law and the legal process as a weapon in modern warfare, either to achieve a military objective or to deny an objective to the enemy.

The definition has been further expanded to include the wrongful manipulation of the legal system to achieve strategic political or military goals. According to Dunlap, lawfare should be viewed much the same as a weapon, one that can be used for good or bad purposes. Professor Michael Scharf stated that “Lawfare is a potentially powerful concept that reflects the importance of law in the conflicts of the 21st century “.

In this address, I have used “Lawfare to referring to the use of law as a tool to achieving certain policy or political goals have questioned the ability of our judiciary to navigate the turbulent terrain of lawfare and to reflect on the consequences of the lawfare.

I have therefore titled my address LAWFARE: LESOTHO’S JUDICIARY AS A SITE FOR POLYCENTRIC AND POLITICAL QUESTIONS STRUGGLE: CAN WE SURVIVE THE MIGRATION OF POLITICS TO THE COURTS?”

BACK TO THE BASICS
Before dealing with the substantive issues, it is important that I regurgitate the basic principles. First. in any democracy it is the fundamental principle based on the separation of powers that policy directions and choices are matters within the executive Branch of government.

The role of Parliament is that of oversight over the executive. Whenever disputes arise, it is the judiciary that is called upon to decide through the application of the law; it is not for the judiciary to make policy choices and to decide on polycentric policy issues.

It is not the judiciary that should run the state but to police the constitutional boundaries and to enforce the Constitution without fear or favour. Political questions are better addressed and resolved by other branches of government and not by the judiciary.

Where however, by executive over breadth and excesses or legislature adopting a supine attitude, the judiciary becomes the only institution to refer these issues.

Second, to protect the constitutional bargain hard-worn by forbearers, and with the assumption that a democracy necessarily require protection and improvement, comparative constitutional architecture provides sufficient evidence of three-layer defence mechanism: The Office of the Attorney General as the First Defender of the constitution: the Law Society and civil society organizations including the media as the second layer in the defence of the rule of law and constitutionalism; and finally the judiciary as the last line of defence.

Bruised by the political and legal environment of colonial and post-colonial Lesotho including the military rule of the 1980s, our Law Society and the judiciary had since 1993 set their face against violations and infringement of human rights, the rule of law and constitutionalism by the state, and have somehow become oblivious of the horizontal violations: violations by private actors upon private actors’ rights and freedoms. Here you can include political parties.

Political Science and Law Journals, both local and international, as well as our Law Reports are replete with accounts and credible evidence that with the advent of coalition politics in Lesotho, more and more of polycentric and political questions which were appropriate for political remediation and strategic direction, are being referred to the judiciary for resolution.

Our courts are precariously sitting at the intersection of law, conflict and politics, and their intervention is likely to render them agents and tools of “lawfare”. The colour and emblem contest between the LCD and DC; whether the distribution of emergency food supplies by DMA through members of Parliament constituted political patronage; ping-pong of the ABC saga case between the High Court and the Court of Appeal; the wool and mohair saga; as well as the stagnation of yet another ABC-case in the High Court; are the defining moments of the success or failure by the Lesotho’s judiciary in navigating polycentric policy issues or political questions cases.

It is not the justiciability of these issues and the competence of our courts to resolve them that we are here concerned, it is the consequences of the lack of preparedness and propriety in the handling of these issues and questions on the judiciary as an institution, the lawfare’s deleterious effect on the values and aspirations of the proper administration of justice, the rule of law and constitutionalism which we hold dear, and sociological legitimacy towards the judicial system as a whole.

As Kati Telle correctly stated concerning the use of legal and extra-legal processes in Indonesia to convict Pak Abdullah for blasphemy, the mobilization of law and the justice system gain orthodox normativity carries with it the paradox of generating heretics and criminals.

COMPARATIVE PERSPECTIVE
At the core of our 1993 Constitution is the grand purpose of democratization and ushering into Lesotho the era and culture of justification and accountability. That was also the purpose of adopting the Constitution in 1994 in South Africa. The judiciary is central to the democratization and constitutionalisation projects. However, the malady of rendering the judiciary a site for struggle on policy issues and political questions is exemplified by the learned Authors, Professor Michelle Le Rouux and Professor Dennis Davis, in their recent book titled “LAWFARE: JUDGING POLITICS IN SOUTH AFRICA” published on April 2019.

The Authors of Lawfare put a simple question: What happens when South Africa’s tumultuous political life becomes entangled in the courts of law? And continue to give an account of myriad of cases which ought to have been resolved by the Executive and Parliament, but unfortunately ending in the Courts in South Africa, thus turning the courts the battleground “for contesting political forces as more and more conflicts that were once fought in Parliament or in streets, or through strikes and media campaigns, find their way to the judiciary”.

The thesis of the Book is that while it is good that the South Africa judiciary is able to shoulder the burden of supporting democracy, it is showing signs of immense strain under the present deluge of political cases, and that whether the courts will survive this strain undamaged remains to be seen.

According to the Authors and some jurists and legal commentators, when courts become a site for policy and political questions struggle, a number of consequences follow • politicization of the judiciary normally wins the war over attempts to juridify and judicialise the politics, especially in volatile political climates; sociological legitimacy deficit gates are open wide as the society no longer regard the decisions of the courts as based on law and legal principles rather the side of the political or policy equation that finds favour with the judicial officer; rules of the game are bent; law used as a tool that distorts the justice system and erode the integrity of the legal system, administration of justice is negatively affected; the rule of law is undermined; and constitutionalism becomes a hollow shibboleth.

In the context of South Africa, a number of factors account for the judiciary sustaining the political questions and polycentricity onslaught. First, the constitutional structural framework for recruitment and appointment of judges, with participation of majority of stakeholders and open, robust and credible recruitment processes ensure that best legal minds are sieved and filtered from the common multitudes.

Second, there is an attempt to put on the bench men and women of proven character; men and women whose conscience remain true to the duty as the needle to the pole; men and women who, even if they had been part of the apartheid struggle with members of the Executive, answer to the call of judicial duty as the Levite Priests to the Temple of Judaism; indeed, men and women who are prepared to shepherd the corridors of power in the interest of rule of law and constitutionalism.

Strong judicial characters in the names of Author Chaskalson P; Mogoeng Mogoeng CJ: and others immediately come to one’s mind.

CAN LESOTHO’S JUDICIARY SURVICE?
Can Lesotho’s judiciary survive the migration of political and polycentric questions into our courts?

In Lesotho’s context, while we pride ourselves with the hallowed principle of the Separation of power and the independence of the judiciary, the buffer between the Executive and the Judiciary, that is the Judicial Service Commission (JSC), is so thin, the JSC made up only of four members.

The recruitment and appointment of judicial officers is wrapped behind the wall of secrecy.
I do not wish to deal with the issue of the character of men and women who sit on our judicial bench, lest an opportunity to present myself for contempt becomes a reality.

Regard being had to the policy-laden issues and political questions that have since been referred to the judiciary for resolution since 1993, and particularly hard on the heels of the advent of coalition politics in Lesotho, it is clear that our judiciary may not be as strong as their South African counterparts to sustain the onslaught.

As I said before, the consequences are dire and far-reaching. The sad part is that when our judiciary falter and stumble under the polycentrism and political questions load, some members of the Law Society participate, in diverse ways, in accelerating the effects through inappropriate comments and action, either in the printed media, social media platforms, radios. etc.

That conduct is unacceptable, inimical to what we stand for 88 the Law Society and should stop.

The situation facing our judiciary is worsened by lack of financial support of the judiciary by the Government of the Kingdom of Lesotho. Sufficient financial support of the Judiciary by the State is a constitutional mandate: but how much funds should be directed in that direction is policy (or political) question. For the first time in the history of the Court of Appeal, a Session of the Court had to be “suspended”.

For the first time in the history of this Nation the reason for the Session not being continued with, is absence of funds. This is unheard of and unacceptable by any democratic standards

WHERE FROM HERE?
As I conclude this address, I wish to slate the following as our judiciary navigates the unchartered muddy waters of LAWFARE of policy and political contestations.

To Members of the Law Society:
First: in June 2019, we as the Law Society took a conscious decision, aware of the constitutional role the Law Society should play in our young democracy, to defend the judiciary including the judges and other judicial officers, to defend the independence of the judiciary from all attacks: and to defend our own members.

While our Constitution allows freedom of expression, including the freedom to criticize the judiciary, we cannot allow such freedom to be expressed in the manner constituting the vilification, scandalisation and disparagement of the courts and judicial officers without adopting the appropriate means.

We will not allow the thin line between militancy and insolence be crossed willy-nilly by our members who have taken oath to uphold the rule of law and to participate in the administration of justice. We cannot allow our own members to become Lawfare warriors.
As the Law Society and its entire membership, we are not proponents of, nor are we governed by, situational ethics. Nothing in our justice system is wrong or right depending on the context and the personalities involved. To us all conduct and action, whether is good or bad, should be judged on the basis of its effect and impact on the administration of justice, the rule of law and constitutionalism.

Our Constitution does not guarantee us a perfect justice system; there is nothing of such sorts in any legal system. Ours is a justice system that guarantees that if errors of fact or law or of occur, such such should be addressed through appropriate means created by or acceptable to the system.

To the Office of the Attorney General
The Attorney General is admittedly the Legal Advisor of the State; but this is the secondary role. The key function of the Attorney General is the defense of our Constitution. In terms of section 98(2) of the Constitution, “it is the duty of the Attorney General to lake necessary legal measures for the protection and upholding of this Constitution and the other laws of Lesotho.”
We invite the Attorney General to consider for the first time legal measures geared towards ensuring sufficient financial support of the Judiciary by the Government of the Kingdom of Lesotho as well as ensuring the protection of the courts from unjustified attacks by members of the public as well as legal practitioners.
This is the duty of the office of the Attorney General to be exercised either by him directly or through relator claim where an interested civil society organization may be authorized to institute a claim in the name of the Attorney General.

To Judicial Officers
Successful navigation of the Lawfare requires an independent judiciary: both institutional and persona, independence. strong dependable character of a judicial officer is key. The whole panoply of constitutional mechanism intended to ensure institutional independence of the judiciary may not be effective without the appropriate character of the judicial officer. Even with these constitutional mechanisms, a weakling may none the less deflect the course of justice.

Developing a strong character is not an over-night event. However, we call upon members of the judiciary to serve our people without fear or favour, in the interest of the proper administration of justice, rule of law and constitutionalism.

To the Government of the Kingdom of Lesotho
We call upon the Government of the Kingdom of Lesotho to discharge their democratic mandate of not only ensuring the financial independence of the Judiciary but also ensuring that sufficient funds and resources sustain the effective functioning of the Judiciary as a whole.

Appropriate means and concrete and credible measures must be taken to ensure that the grievances of the magistracy are resolved.

The Law Society is presently undertaking the study on the state of the judiciary in Lesotho and will take appropriate measures, based on the report, to ensure that the Government of the Kingdom of Lesotho discharge its constitutional mandate towards supporting the Judiciary.

Systemic lack of funding for the judiciary is antithetical of the democratization process and development.

I wish to commend the Court of Appeal, the Deputy Registrar to the Court of Appeal, the support staff at the Court of Appeal and members of the legal profession for ensuring that the Session of the Court of Appeal becomes a reality. THANK YOU.

Advocate Tekane Maqakachane is the president of the Law Society of Lesotho. He made this statement at the opening of the session of the Court of Appeal of Lesotho on May 13, 2019.

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