Basotho National Party and Another v Government of Lesotho and Others (CONSTITUTIONAL CASE NO.5/2002)

Media Neutral Citation: 
[2003] LSHC 6
Judgment Date: 
1 January, 2003

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CONSTITUTIONAL CASE NO.5/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:

BASOTHO NATIONAL PARTY 1st APPLICANT

JUSTINE METSING LEKHANYA 2nd APPLICANT

and

THE GOVERNMENT OF LESOTHO 1st RESPONDENT

THE MINISTER OF LAW AND

CONSTITUTIONAL AFFAIRS 2nd RESPONDENT

THE PRESIDENT OF THE SENATE 3rd RESPONDENT

THE SPEAKER OF THE NATIONAL ASSEMBLY 4th RESPONDENT

THE DIRECTOR OF ELECTIONS 5th RESPONDENT

THE INDEPENDENT ELECTORAL COMMISSION 6th RESPONDENT

THE COUNCIL OF STATE 7th RESPONDENT

THE ATTORNEY GENERAL 8th RESPONDENT

THE BASOTHOLAND AFRICAN CONGRESS 9th RESPONDENT

THE BASOTHOLAND CONGRESS PARTY 10th RESPONDENT

THE LESOTHO CONGRESS FOR DEMOCRACY 11th RESPONDENT

THE LESOTHO PEOPLES CONGRESS 12th RESPONDENT

THE LESOTHO WORKER'S PARTY 13th RESPONDENT

THE MAREMATLOU FREEDOM PARTY 14th RESPONDENT

THE NATIONAL INDEPENDENT PARTY 15th RESPONDENT


Held at: Maseru


Coram: Mofolo J.

Hlajoane J.

Nomngcongo J.


Reasons for Judgment


NOMNGCONGO J.


This application was argued before us on the 9th and 10th June, 2003 and we dismissed the application and intimated that reasons would follow. These now are the reasons.


This is the last of a number of applications by the Basotho National Party, 1st applicant (herein after referred to as the BNP) and Justin Metsing Lekhanya, 2nd applicant (herein after referred to as Lekhanya). The previous application's main thrust was to challenge the validity of the general elections held on the 25th and 26th May 2002. The application immediately preceding the present one was launched on an urgent basis as Constitutional Case N0.4 on the 31st October 2002. Less than three weeks later, on the 18th November 2002, the applicant's then brought this application again alleging urgency. It is in the following terms.


  1. That this matter be disposed of by way of urgency, dispensing with the forms and service provided for in accordance with the provisions of the Constitutional Litigation Rules, subject to such directions as may be given by the Honourable Presiding Judge for the matter to be dealt with at such time and in such manner and in accordance with such procedure as far as possible in accordance with the Rules,


  1. Declaring that the judiciary established by virtue of section 18 of the Constitution of Lesotho is not independent or free from interference and influence of the Government and the ruling political party.


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  1. Ordering the Government to protect the independence, dignity and effectiveness of the judiciary in order for the fundamental rights of the applicants to a fair trial to be protected and given effect to.


  1. Ordering the Government to take the necessary steps, in accordance with its constitutional processes to adopt such legislative and other measures necessary to give effect to the rights recognized in the following international conventions:


4.1 The United Nations Universal Declaration of Human Rights 1948;


4.2 African Charter of Human Rights 1981;


4.3 The United Nations "Basic Principles on the Independence of the Judiciary, 1985;


4.4 Harare Principles 1991;


4.5 Commonwealth Lusaka statement of Government under the Law, 1992;


4.6 The Judges Charter in Europe, adopted by the European Association of Judges, regional group of the International Association of Judges 1993;


4.7 The International Covenant on Civil and Political Rights, 1996.


4.8 Latimier House Guidelines for the Commonwealth, 1998.


4.9 The Universal Charter of the Judge, General Council of the International Association of Judges, 1999.


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  1. Ordering the Honourable Chief Justice to recuse himself from participating in the hearing of this application as well as hearing the applications pending before the High Court of Lesotho under case numbers CIV/APN/295/2002 and CIV/APN/413/2002 and the application before the Honourable Court written Constitutional Case Number 4/2002.


  1. Ordering that the proceedings in respect of applications pending before the High Court of Lesotho under case numbers CIV/APN/295/2002 and CIV/APN/413/2002 be stayed pending the final determination of the application brought before this Honourable Court under Constitutional Case No.4/2002.


  1. The costs of this application, including the costs of two counsel, will be paid by the First and Second Respondents, and by such of the other Respondents who oppose the application jointly and severally the one paying the other to be absolved.


  1. Further and/or alternative relief.


This case was opposed by the first respondent (the Government of Lesotho) "the Government", the second respondent (the Minister of Law and Constitutional Affairs)


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and the 8th Respondent (the Attorney General)-(hereinafter referred to as respondents), Lebohang Fine Maema K.C. the Attorney General swore an answering affidavit on behalf of all respondents.


The applicants did not file any replying affidavits. Instead the applicants caused a letter to be written on the 3rd March 2003 complaining that they had not received a fair hearing in applications CIV/APN/413/2002 and CIV/APN/295/2002 for joinder of certain parties. They subsequently withdrew these applications. They further advised that they would not be filing replying affidavits in Constitutional application 4 and 5 - the present application. The reason they advanced was that they "may not decide to have the applications in question decided in the Courts of Lesotho. Our client's position in respect of the Courts and the fact that they did not, in applications 413 and 295/2002 and will not, in Constitutional Cases 4 and 5/2002, receive a fair hearing, are clearly set out in Constitutional Cases 4 and 5/2002 and supported by subsequent Court rulings".


The applicants further indicated that they would be pursuing all avenues to have the cases complained of heard by International Human Rights Commissions. They further emphasize that they would not be given a fair hearing in our Courts - they


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were merely going through the moves, so to speak, in order to exhaust local remedies as a prerequisite to pursuing international remedies.


On the 6th March 2003 the Registrar then advised all the parties of the date of hearing of Constitutional Case 4 and 5. They were set down for the 10th March 2003 at 9.30. The applicants then responded by a letter dated 7th March addressed to the Registrar that they did not persist with their applications and a notice of withdrawal was filed of record. By a followed up letter of the 10th March they indicated that they objected to the notice of hearing as it was "unreasonable and a clear violation of ...our constitutional rights to a fair hearing" and that "they will not be afforded a fair hearing ... in the courts of Lesotho". They were thus withdrawing the applications and offering "reasonable costs which [the respondents] may be legally entitled to under a judicial system in which... applicants lawful rights are recognized, respected and protected".


The obvious implication is that our jurisdiction is not the judicial system as envisaged by the applicants. The offer of costs to the respondents who are litigating in this court is, therefore, nugatory.


On the 14th March, the full bench of the Constitutional Court consisting of Mofolo J, Hlajoane J and myself heard argument on the competence of the applicants'


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withdrawal of Constitutional applications 4 and 5. We found that it was not competent for the applicants to unilaterally withdraw the applications. The Constitutional Litigation Rules provide as follows:


"17. Where the parties to a case, at any stage of the proceedings, lodge with the Registrar an agreement in writing that case (sic) be withdrawn, specifying the terms relating to the payment of costs and paying to the Registrar of any fees that may be due, the Registrar shall, if the presiding judge so directs, enter such withdrawal".


In the present case there was no agreement in writing of any nature between the parties, much less one "specifying the terms relating to the payment of costs". The little that was tendered was offered with one hand and taken with the other. In any case the wording of the rule is such as to give a discretion to the presiding judge whether or not to accede to the withdrawal, an agreement notwithstanding. It was our view that the application raised such important Constitutional and Public issues that having been raised this court had to pronounce on them.


In the circumstances we upheld the respondent' opposition to the withdrawal of the applications and ordered as follows:



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  1. That applicants' notices of withdrawal in Constitutional Case No. 4/2002 and Constitutional Case No. 5/2002 are not accepted.


  1. That the two matters be set down for argument from the 12th to the 16th May 2003, commencing with Constitutional Case No.4/2002.


  1. That respondents be awarded costs incurred in opposing the withdrawal of the applications on the attorney and client scale.


The Court duly convened on the 16th May 2003 and heard argument on behalf of the respondents. The applicants who had decided to take no further part in the proceedings were not represented at all. My sister Hlajoane J. has written judgment in Constitutional Case No. 4/2002. This is my judgment in Constitutional Case No.5/2002.


Urgency


This application was brought, like all the others that preceded it as a matter of extreme urgency. The applicants basically seek orders, that the court declare the judiciary established in terms of Constitution, not independent and free of Government influence, that Government be ordered to protect that independence, that government be ordered to give effect to various international conventions listed in the


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notice of motion, that the Chief Justice recuse himself in applications number CIV/APN/295/2002, CIV/APN/413/2002 and Constitutional Case No.4/2002, that CIV/APN/295 and 413/2002 be stayed pending the determination of Constitutional Case No.4/2002. Now the present Constitution of Lesotho came into operation on the 2nd April 1993. The various international conventions specified by the applicants were in existence either long before then or long before these proceedings were instituted. It is a notorious fact that the applicants have been litigating in these courts ever since. It is therefore a matter of astonishment that it has suddenly dawned with extreme urgency upon applicants that the courts of this Kingdom are not independent and not in accord with international conventions. Even if there is a case to be made for applicants, to suggest that it is urgent on these grounds is quite preposterous. As for the recusal of the Chief Justice, apart from anything else, it was known to the applicants that he was not seized with the matters in the two applications referred to and in any case they had already been disposed of. As regards the Constitutional Case No.4, there was no indication that the Chief Justice would be sitting and therefore there was no occasion for calling for his recusal. I will have more to say about this later when I deal with the merits.


There was never any urgency in this application. It is the sort of approach that the


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High Court and Court of Appeal have on innumerable occasions decried and issued dire warnings against. I repeat for what it is worth to some legal practitioners, that it is an abuse of court process. Of the avalanche of cases in this regard I would refer to the following: Commander, Lesotho Defence Force v Matela 1999 - 2000 LLR& LB 13 (LAC); Molapo Qhobela v B.C.P. 1999 - 2000 LLR & LB 243. (LAC); Sea Lake (Pty) Ltd v Chung Hwa 1999-2000 LLR & LB 391 (LAC) Vice Chancellor of NUL & Another v Matsobane Putsoa C. of A. (Civ) No.28/2002. (Unreported). I may say we would dismiss this application on this ground alone. However as indicated earlier the issues raised in the application are so important that they have to be laid to rest with a definitive judgment on the merits. I will proceed then to deal with them. In doing so it is well to note at the outset that since no replying affidavits have been filed by the applicants the allegations in the respondents' answering affidavit stand unchallenged and their version must be accepted (Plascon-Evans Paints Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 683 (A) at 634 E - 635C).


For convenience I will start with the prayer for staying pending applications as it is amenable to easy and prompt resolution.


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1. THE STAYING OF PENDING APPLICATIONS


The applications in CIV/APN/295/2002 and CIV/APN/413/2002 have since been disposed of in the face of considerable obstacles placed by the applicants. This was in spite of the fact that applicants had themselves brought the applications as a matter of great urgency. In the event in the one case they withdrew and tendered costs which the court awarded. In the other when their attorney withdrew, they simply abandoned it. Significantly after, the attorney Mr. Phoofolo withdrew Lekhanya was given the opportunity to address the court. He said he was unable to address court and then walked out. These events are catalogued in para. 4 of the answering affidavit of Lebohang Fine Maema. There is no point in further dwelling on them.

As regards Constitutional Case No.4/2002 no reasons were advanced why it should be stayed. The thrust of this application like those that preceded it was to set aside the general elections held in Lesotho on May 25th and 26th, 2002. One cannot discern how the present application would affect the outcome of those applications. There is no merit in this unusual request and it can never be granted.


THE INDEPENDENCE OF THE JUDICIARY


In support of the alleged contention that the Judiciary in Lesotho is not independent


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of Government and the ruling political party in his founding affidavit makes the following averments:


  1. He, himself and his constituents whom he says represent society as a whole perceive the judiciary as not being independent and free from the influence of the executive and the ruling party (see para. 10 of his founding affidavit). He makes a further rather tongue-in cheek point that he was the de facto head of state from January 1986 to April 1991 and that in that capacity he knows, as well as does the Chief Justice "that the judiciary is neither independent nor impartial when matter affecting the government are concerned." (Para.8.1 of Lekhanya's affidavit).


  1. The three essential elements of judicial independence - institutional independence, security of tenure and financial security-are absent in Lesotho, with the result that judges are vulnerable to internal and external pressure in their consideration of cases (see para. 10.9 of Lekhanya's affidavit).


    1. Independence from the executive and the ruling party. The point that the applicants make in the first place is that the courts of this country are biased against them in particular and in favour of government. This is crystalized by the affidavit of Lekhanya at para. 6


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of his founding affidavit where he says:-


"This is an application to ensure that the applicants' fundamental rights to full equality before, and to a fair and public hearing by an independent and impartial tribunal of its disputes is protected and given effect to. The applicants' contend that the judiciary established by virtue of section 118 of the Constitution of Lesotho is not independent and free from interference in as much as it is perceived to be an extension of the political authority in Lesotho." (My underlining).


At para.8.2 Lekhanya continues to say:


"As far as the specific issues are concerned I fear that applicants would not receive a fair hearing of the pending applications referred to above before a domestic tribunal, which includes the Chief Justice as a member, would not be partial".


The applicants conclude that in the circumstances they have merely come to court to exhaust local remedies before they go on to petition the Commonwealth Commission on Human Rights, and/or the African Commission on Human Rights or such other international fora as may be appropriate for relief (Para. 15.9 of Lekhanya's affidavit.)


These very serious contentions must be supported by objective evidence to be sustainable. I have thoroughly examined the affidavit of Lekhanya in this regard. While he, and I assume on behalf of the second applicant of whom he is president,


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bitterly lambast the Chief Justice, I find no objective evidence that they place against the rest of the judiciary which they say is all biased and impartial against them. Nor as is there any basis established for implying that the applicants are singled out for biased and impartial treatment.


In the second place a more general attack on the judiciary is made based on Lekhanya's personal perceptions and views, and according to him those of many of his constituents whom he startlingly says represent those of society as whole. He says they perceive that the judiciary is not independent of the executive or the ruling party and thus its impartiality has been eroded (par. 10.4 of Lekhanya's founding affidavit). First of all it is highly presumptuous to postulate that the perceptions of "many .. constituents" represent those of society as a whole. Secondly Lekhanya's constituents have not sworn any affidavits and their evidence must be discarded as inadmissible hearsay.


The high point of Lekhanya's personal insight, as pointed out by Mr. Viljoen would seem to be his purported knowledge and experience of the judicial system while he was the head of a military junta. He also attributes such knowledge to the Chief Justice, the knowledge that the judiciary is not independent of government and the


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ruling party.



Now what Lekhanya knows and what his experience is, is not substantiated. He makes a bald statement unsupported by any evidence and he expects us to believe him in such a serious indictment against the judiciary. We cannot. To go further to snidely attribute such knowledge to the Chief Justice is in my view outrageous. This is to suggest that the Chief Justice participates in a judiciary that he knows flouts all that the judiciary stands for and our sacrosanct oath of office. The suggestion only has to be made to see it for what it is - sacrilege! It cries out for purgation.


To establish that a judicial officer, a fortiori the whole judiciary of a country is biased or impartial, it is not enough to rely on vague and generalized allegations. The test indeed is a very high one. It was put thus neatly in the overseas jurisdiction of Canada in R v S (RD) (1997) 118 ccc (3(d)353.


" Courts have rightly recognized that there is a presumption that judges will carry out their Oath of office .... This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, the presumption can be displaced with 'cogent evidence' that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias "- per Cory J. (writing for the majority of the Canadian Supreme Court."


Coming closer home the same sentiments were expressed in the President of the


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Republic of South Africa and Others v South African Rugby Union and Others, 1999 (4) SA 147 (cc). This was a case almost similar though not identical to the present one, in that one of the respondents there sought the recusal of the whole of the Highest Courts of South Africa. It was held there as in R v S (RD) (supra) that the test is an objective premised on the presumption of judges impartiality. The Swaziland Court of Appeal had this to say in Minister of Justice and Constitutional Affairs v Sapire (CIV.APPEAL NO.49/2001) (unreported):


".....the law will not suppose a possibility of bias in a judge who is sworn to administer justice without fear or favour and whose authority, greatly depends upon that presumption and idea. R v Camborne Justices, ex parte Pearce (1955) 1 QB4".


On the objective test the House of Lords said the test is whether


"the fair minded and informed observer, having considered all the facts would conclude that there was a real possibility that the tribunal was biased." (Porter and Another v Magiel (2002) 1 all ER 465 (HL) at 507e).


Our own Court of Appeal then considered what a fair minded person encompassed and concluded:-


" the relevant perception ......is based on a balance view of all material information. The enquiry related to how a well informed, thoughtful and objective observer rather than a hypersensitive, cynical and suspicious person would view the facts. (Van Rooyen and others v. The State and Others, General Council of the Bar of South Africa Intervening 2002 (5) SA 246 (cc at 273D) per Gauntlet J.A. in Sole v Cullinan and Others ( C of A) CIV.


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29/2002 (unreported at para. 48)".


The applicants have not provided any evidence to show that the judiciary of this country is not independent in the sense that it is biased, impartial or prejudicial. There is no material upon which an "objective observer" would or could form such perception. Indeed there is none to show that the judiciary is not free from interference and influence by the Government and ruling party.


Apart from the alleged bias the applicants rely for their assertions on the alleged lack of the three essential conditions of judicial independence: institutional independence, security of tenure and financial security. All these allegations are based on alleged deficiencies in the Constitution of Lesotho. The Constitution is the, supreme law of Lesotho in terms of section 2 thereof. The courts of law are the creatures of the Constitution with all its faults perceived or real. (sec. 118 of the Constitution). It is the same Constitution that guarantees the independence and freedom from interference, but subject to itself (sec.2 of the Constitution). To ask us to declare that the Courts established under the Constitution not to be independent is tantamount to asking us to declare a constitutional institution to be unconstitutional. No court of law could make such an illogical declaration.


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The applicants may criticize the Constitution. It is in their turn, their constitutional rights to do so. After all they aspire for political office. Perhaps when they achieve it they might change it in accordance with what they think it should be. But in all this, the duty of the Courts remains clear. It is to give effect to the Constitution as it stands. The applicants would do well to heed the words of Nnaemeka -Agu J.C.A in the Nigerian case of Nigerian Union of Journalists and Another v Attorney General of Nigeria 1986 (Law Reports of the Commonwealth - Constitutional and Administrative Law Reports') 1 at p.6. he stated:


"The duty of the Courts is to interpret and give effect to legislation as given by the law giver. We are concerned with the law as it is and not as it ought to be".


This ought to dispose of all the contentions raised by the applicants regarding the deficiencies of the Constitution. However Mr. Viljoen for the respondents has dealt extensively with each aspect complained of by the applicants. I for my part will deal briefly with these.


INSTITUTIONAL INDEPENDENCE


The applicants seem to envisage a constitution that provides for a total separation of

the judiciary from the other arms of government viz the executive and the legislature.


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Lekhanya says for example that "the institutional independence of the judiciary in Lesotho is negated by executive legislative control, most evident in the appointment of judges and the dependence of the judiciary on an executive department of government for its administrative and budgetary functions".


The primary function of the courts is to dispense justice according to the law. In doing so they must be independent and free from interference and influence by the other arms. That is essentially what is meant by judicial independence. What it does not mean is that the judiciary should completely sever itself from the rest of the arms of government. Government is one whole with three parts of which one is the judiciary. So, as in one body, it is neither possible nor desirable that one part should function completely independently of the other.


The complaint that the Prime Minister participates in the appointment of justice is blind to common practices in most democracies of the world including the Commonwealth. The case of Van Rooyen v The state (supra) is particularly instructive in this regard. It illustrates how not only the executive but also the legislatures of other countries participate in the appointment of judges. For example "A justice of the High Court of Australia is appointed by the Governor-General in


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Executive Council following consultation between the Attorney General of the Commonwealth and Attorneys General of the States. Judges of the Supreme Court of the U.S.A. are nominated "by and with the advise and consent of the Senate and appointed by the President". Equally in Germany the House of representatives (the Bundestag) and Ministers participate in the appointment of judges.


Thus it was held Ex parte Chairperson of the Constitutional Assembly in re: Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744(cc) at paras (123 - 124) (referred to with approval in Van Rooyen's case supra :


" The mere fact ....that the Executive makes or participates in the appointment of judges is not inconsistent with the doctrine of the separation of powers or with judicial independence required by [Constitutional Principle] viii. In many countries in which there is an independent judiciary and a separation of powers, judicial appointments are made either by the Executive or Parliament or by both. What is crucial to the separation of powers and the independence of the judiciary is that it should function impartially and that it should function independently of the legislature...... Appointment of judges by the Executive or a combination of the executive and parliament would not be unconsistent with the [Constitutional principles]."


The principle of separation of powers was again considered by our own court of appeal in the case of Sekoati and Others v President of the Court Marshall and Others 2001(7) BCLR 750(Les.CA) at p.761 C-D). It was held as follows:


"With regard to the role of the convening authority and the confirming authority it is important to bear in mind that no judicial system is entirely


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devoid of any relationship with the legislative or executive branches of government. Judges' appointment and retirement as well as their remuneration are governed by statute. Judges may be impeached by the King acting on the advice of a tribunal, the member of which in the case of the Chief Justice are selected by the Prime Minister in terms of section 121(6) of the Constitution-similarly the number of judges required for a forum is fixed by statute or regulations. It is unavoidable that relations of this kind should exist between the judiciary and the other organs of state (see Mackeigan v Hickman 1989 50CCC (3rd )449 quoted in Regina v Genereaux (1992) 88 DLR (4th ) 110SCC".


Finally Professor Tribe (in American Constitutional Law Vol. 1 3 Ed. (Foundation Press, New York 200) at p. 127) dismisses any Utopian notion of the separation of powers as follows.


"What counts is not any abstract theory of separation of powers, but the actual separation of powers 'operationally defined by the Constitution'. Therefore , where the constitutional text is informative with respect to the separation of powers issue, it is important not to leap over that text in favour of abstract principles that one might wish to see embodied in our regime of separated powers, but that might not in fact have found their way into our Constitution's structure "(My emphasis).


SECURITY OF TENURE:


The Constitution of this country provides for security of tenure of the judges of the High Court who "may be removed from office only for inability to perform the functions of [this] office (whether arising from infirmity of mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with this


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constitution", (section 121(3). Lekhanya complains that even though this appears to provide for the required security of tenure this is placed "squarely under government control" whatever that means. If that is what the constitution requires, so be it.


FINANCIAL SECURITY


The complaint here is that "The salaries and other allowances earned by judges in Lesotho are relatively low and are not set out by any independent commission". It is not stated what their lowness is relative to. What we do know however is that their statutory salaries in particular, are higher than those of Cabinet Ministers and in the case of the Chief Justice higher than that of the Prime Minister. Salaries and allowances can not be considered in vacuo. They are part of the broader economic situation of a country and they must perforce reflect it. There is no merit in this complaint.


COMPLIANCE WITH INTERNATIONAL OR REGIONAL CONVENTIONS


The applicant has asked this court to order the Government to take the necessary steps in accordance with its constitutional processes to adopt such legislative and other measures (not articulated) necessary to give effect to the rights recognized in some nine international and regional conventions. It is clear that the applicants recognize


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that these conventions cannot form part of our municipal law until and unless they are incorporated into municipal law by legislative enactment. This is trite law. (see AZAPO V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 1996(4) SA 671 (CC). What the applicants are asking us is to order "government" - by that I suppose he means, the other organs of government: the Executive and the Legislature - to initiate legislation to adopt these conventions. They do not say whether in part or in toto.


Now each organ of government is allocated its function by the Constitution. Each one of them jealously guards its terrain and interacts with the others only in so far as it is permissible under the Constitution. For our part as the judiciary we dispense justice and in doing so demand that others respect others' rights. We jealously guard our own right granted by the Constitution to dispense justice freely and independently of among others our sister organs of government. We cannot while doing so deny the other organs the right that we demand for ourselves to act freely and without interference. It is the prerogative of the other organs of government to initiate and to pass laws. That right they exercise freely and independently. The judiciary cannot by its orders interfere in the legislative process - it is outside its domain. In state of Huniachal Pradesh v Students1 Parent(1986) LRC (Const.) 208 at 213 c-f (Supreme


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Court of India) Bhagwati J. put it thus:


"When the Court passes any orders in public interest litigation, the court does so not with a view to mocking at legislative or executive authority or in a spirit of confrontation but with a view to enforcing the Constitution and the law.


.....But at the same time the court cannot usurp the functions assigned to the

Executive and the legislature under the Constitution and it cannot even indirectly require the Executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law-making activities of the Executive and the Legislature."


THE RECUSAL OF THE CHIEF JUSTICE


It is to be observed at the outset that although the applicants seek relief against the Chief Justice, he has not been cited in these proceedings. This is a fatal non-joinder. Again the applicants have without reason adopted a most unusual procedure of approaching court. It is trite that:


"......As a matter of strict procedure, an application for recusal of an adjudicator should admirably be directed at the adjudicator in question and initially at least be determined by him." (See President of the Republic of South Africa v South African Rugby Football Union pars. 33-34(supra)


Further there was no indication by the applicants that the Chief Justice would preside in any of the pending cases and for that reason the applicants had no occasion to bring this application even if it were proper to do so to us. As a matter of fact as at the time that this application was brought all the applications referred to by the applicants had been allocated to judges and in none of them did the Chief Justice feature. The


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application was therefore not only premature but completely unnecessary. It would seem however that its only purpose was to deprecate the Chief Justice. In his affidavit Lekhanya charges that he became "aware that the Chief Justice does not enjoy the confidence of the members of the public, and particularly that of the supporters of the first applicant" and "the Chief Justice lacks capacity to do justice in any case involving the applicants seeking redress against the government, or as far the elections are concerned." He goes on to say "the Chief Justice was awarded the most Meritorious Order of Mohlomi" and finally that "the Chief Justice's brother is the deputy Prime Minister of the present government of Lesotho. Clearly these inanities can never form the basis for the recusal of a judge. They are scurrilous and impertinent and I will not deign to address them further.


In conclusion the court considered the question of costs. We seriously considered awarding costs on the Attorney and Client scale but Mr. Viljoen magnanimously did not insist on them. Like my sister Hlajoane in Constitutional Case No.4 we award costs as follows:


  1. We dismiss the application with costs, including in the case of 1st, 2nd and 8th Respondents, the costs of two Counsel.


  1. Notwithstanding the provisions of Rule 55, the Taxing Master shall


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allow such fees and expenses of Counsel for the Respondents as she considers reasonable, having regard to all the circumstances, including the fees Counsel have marked on their briefs.


T. NOMNGCONGO

JUDGE


I Concur

A.M. HLAJOANE


I Concur

G.N. MOFOLO JUDGE


For applicant

For respondents 1st, 2nd & 8th H.P. Viljoen SC.

For respondents 1st, 2nd & 8th P.B.J. Farlam


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