THE National University of Lesotho’s (NUL) public expression of dissatisfaction with the manner in which the Court of Appeal has handled its legal disputes should not be dismissed as a mere institutional outburst or an attempt to undermine the judiciary.
On the contrary, the concerns raised by the university are both legitimate and justifiable because they touch on one of the most sacred principles of any democratic society: public confidence in the administration of justice.
At the centre of the dispute is Professor Kananelo Mosito, who serves simultaneously as Pro-Vice-Chancellor of NUL and President of the Court of Appeal. The university has argued that this dual role creates circumstances that could give rise to a reasonable apprehension of bias, especially because cases involving Prof Mosito are ultimately being handled by judges who are his peers in the very court that he leads.
The issue here is not whether Prof Mosito or any of the judges involved are actually biased. The law has long recognised that justice is not only about fairness in fact, but also about the appearance of fairness. Courts throughout the world have consistently held that justice must not only be done but must also be seen to be done. The moment reasonable people begin to question the impartiality of judicial proceedings, confidence in the entire justice system begins to erode.
NUL’s concerns become even more understandable when one considers the sequence of events it has highlighted. The university says its urgent application seeking review and reconsideration of certain Court of Appeal orders was neither acknowledged nor given any directions regarding its hearing. Yet, in another matter involving students, court directives were issued within days under exceptionally compressed timelines.
Whether these differences in treatment are justified or not is almost secondary. What matters is that they create a perception of inconsistency. Public institutions, particularly courts, survive on trust and credibility. Any appearance that litigants are receiving different treatment under similar circumstances naturally invites questions and suspicion.
The university has also taken issue with the Court of Appeal’s decision to restrain the recruitment of a new Vice-Chancellor, arguing that such relief had not even been sought by any of the parties and that the order effectively determined the central dispute before the substantive appeals had been heard. Whether this legal argument will ultimately succeed is for the courts themselves to determine. However, it is entirely reasonable for a litigant to question orders that appear to go beyond the relief sought by the parties.
Indeed, the judiciary should never regard criticism or scrutiny as an attack on its independence. Judicial independence is not immunity from public examination. Courts, like all public institutions, must remain accountable to the principles of fairness, transparency and consistency. An independent judiciary commands respect precisely because it is expected to hold itself to the highest standards.
NUL itself has been careful in its criticism. The university has repeatedly reaffirmed its respect for the judiciary and its commitment to resolving the disputes through lawful judicial processes. Its statement does not seek to intimidate judges or reject the authority of the courts. Rather, it raises concerns about procedural fairness and the appearance of impartiality.
These concerns are particularly important because this case goes beyond the interests of individuals or institutional rivalries. It concerns the governance of the country’s premier institution of higher learning and raises broader constitutional questions about conflicts of interest and public confidence in state institutions.
It would therefore be a mistake to dismiss the university’s complaints simply because they are directed at the judiciary. In mature democracies, public institutions must be able to raise concerns without fear of being labelled rebellious or disrespectful. Indeed, institutions that remain silent in the face of perceived procedural irregularities may end up contributing to the weakening of public trust.
The judiciary, too, has an opportunity here. Rather than viewing the criticism defensively, it can use this moment to demonstrate its commitment to transparency and impartiality. Addressing the university’s concerns openly and ensuring that all pending matters are dealt with expeditiously would go a long way towards restoring confidence.
Ultimately, public confidence in the administration of justice is too important to be left to assumptions. It must be earned continuously through conduct that is beyond reproach. When a respected public institution such as NUL says that certain developments have created legitimate concerns about fairness and consistency, those concerns deserve serious consideration rather than outright dismissal.
The rule of law depends not only on judicial independence but also on public faith that every litigant, regardless of status or influence, will receive equal and impartial treatment before the courts. The concerns raised by NUL may or may not ultimately prove to be legally justified, but they are certainly understandable, reasonable and worthy of careful attention.
For the sake of both the university and the judiciary, the outstanding matters should be resolved transparently and without delay. Only then can confidence be strengthened in both the country’s institutions of higher learning and its justice system.
After all has been said and done, it is wrong for a court Justice Mosito leads to be issuing injunctions favorable to him. The optics are not good. The NUL Council is right to feel aggrieved. Again, unless the University’s concerns are addressed transparently, the reputation of the judiciary is at risk.
