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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Judicial independence & impartiality: foundational values in contemporary Basotho constitutional jurisprudence
Authors:Okpaluba, C.ISNI
Molapo, T.
Periodical:Lesotho Law Journal: A Journal of Law and Development
Geographic term:Lesotho
Subjects:separation of powers
constitutional courts
judicial power
Abstract:Judicial independence and impartiality are a sine qua non of the administration of justice in a modern democratic State. They form the operational base of the rule of law. However, their meaning and scope have often been misconstrued, leading to varying degrees of constitutional challenges and a wealth of case law articulating their constitutional and legal meaning. Two Lesotho Constitutional Court judgments can now be added to the growing body of Commonwealth jurisprudence. In Basotho National Party & Another v Government of Lesotho & Others (2005) the constitutional validity of a provision in the Constitution was being challenged. In Judicial Officers' Association of Lesotho & Another v The Prime Minister & Others (2006) it was alleged that the executive had interfered with the judicial independence of magistrates. The availability of credible evidence in this case, and its absence, coupled with the lack of existing precedents, in the Basotho National Party case, are the factors separating the two cases. The authors analyse the two cases in the light of the existing case law in other Commonwealth jurisdictions. In the two cases analysed, the judgments of the Lesotho Constitutional Court demonstrate that judicial independence and impartiality are not to be measured according to the understanding of individual litigants. They must be tested against the objective standard having regard to the structural arrangements put in place by the Constitution and national legislation and the reasonable perceptions of a reasonable person as to the impartiality of a judge in a given case. Notes, ref., sum. [Journal abstract, edited]