20 February, 2015

Lesotho’s Judiciary Compromised

by M. K. Mahlakeng

On the 15th January 2015, Prime Minister Tom Thabane appointed Kings’ Council (KC) Kananelo Mosito as the new President of the Court of Appeal. In consideration of the current caretaker status of the coalition government, this appointment fails to abide by the powers and functions of a caretaker or transitional government, breaches the electoral code, immensely threatens the possibility of holding elections and places dire ramifications on the country’s judicial system. The consequences for such an appointment include the resignation of four foreign Court of Appeal judges, that is, Justice Doughlas Scott, Justice Craig Howie, Justice Wilfred Thring and Justice Roger Cleaver, on the 30th January 2015, reducing the country’s apex court to only two South African judges, namely, Justice Winfred Louw and Justice Ian Farlam.

Kananelo Mosito

Following the dissolution of Lesotho’s parliament on the 5th December 2014, it was decided by the electoral agreement (i.e. the Maseru Facilitation Declaration) mediated by SADC appointed mediator and Deputy President Cyril Ramaphosa that the current Coalition Government will only act in its capacity as a “transitional or caretaker government” pending the 28th February 2015 general snap elections to eventually determine a legitimate government.

A caretaker or transitional government is set up for a number of reasons: 1) when a parliamentary system is defeated in a motion of no confidence; and, 2) when the house to which the government is responsible is dissolved. This government has limited powers and functions differing from that of an actual government such as: 1) a caretaker government rules the country for an interim period until an election is held and a new government is formed; 2) caretaker government’s activities are limited by custom and convention, with no authority to make any key appointments pending elections; 3) caretaker governments operate in the interim period between the normal dissolution of parliament for the purpose of holding an election and the formation of a new government after the election results are known

The PM has violated this caretaker status due to his keen motive to win power by all means and meet the diamonds interests of the Gupta-ANC in Lesotho. This is also an attempt by the PM to capture key positions of the State in light of the fact that his coalition government faces prospects of being unseated by possibilities of yet another coalition government, come February elections. Ignoring the caretaker status and the obligations of the electoral code implies the same unsatisfactory element (i.e. Tom Thabane’s unilateral decision-making despite rules mandated to him by the Constitution) that has brought the coalition government into the current political situation.

With the recent delegation hosted by President Zuma on the 9th February in his capacity as chair of the SADC troika organ on politics, defence and security co-operation and the visit of Mr Ramaphosa to Lesotho on the 13th February, concerns over security and the violation of the Maseru facilitation and security accords were raised. Nonetheless, the issue of the appointment of the President of the court in question was not addressed, in its nature also central to the peace process in Lesotho.

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