Abstract
The study explores the theory of corrective justice as the paradigm of both private law and private law litigation. It unpacks the corrective justice structural ideas of correlativity and personality which organise private law litigation as a two-party contest between the wrongdoer and the victim who are correlated in bipolar positions. The purpose of adjudication under the corrective justice paradigm is to restore the formal equality which pre-existed the act of injustice and disturbed the balance between the parties. Within the corrective structure, a judge does not have wide remedial discretion as the available remedies are pre-determined by the bipolarity of plaintiff-defendant, loss-gain and right-remedy and the necessity to restore the parties to the pre-injustice status quo. On this paradigm, public policy considerations external to the correlative positions of the parties are discarded as irrelevant and therefore not factored in the legal analysis and decision-making.
The study discusses legal formalism as the legal method of analysis and reasoning applied in corrective justice-based litigation. Legal formalism gives primacy to the pedigree of existing rules and applies them mechanically without problematising them and their underlying postulates. In this regard, public policy considerations are discarded from the legal analysis and judicial decision-making. Legal formalism is thus a dogmatic creed that prohibits constitutional values and public policy from influencing judicial decision-making and to radiate into the heartland of private and public relations through adjudication. Over a long period, corrective justice and legal formalism have rubbed into the mental, behavioural and intellectual profile of the judges and lawyers and form the basis of Lesotho’s legal culture. The existing legal culture of corrective justice and legal formalism is constraining and therefore inimical to transformation in Lesotho. It also accounts for judicial conservativism and minimalism that characterises adjudication in Lesotho.
Through the colonial administration, the corrective justice model of litigation was transposed to Lesotho, and the courts in Lesotho have been applying the model even in constitutional litigation. The Constitution of Lesotho prescribes radical social transformation which was to be attained through transformative adjudication. Although the judiciary’s role in transformation and its capacity to achieve constitutional goals had, generally, strongly been critiqued, the courts in Lesotho ought to have taken a methodological shift from the corrective justice model of adjudication to a form of adjudication which is appropriate and conducive for the concretisation
v
of constitutional ideals prescribed by the 1993 Constitution. Unlike the corrective justice model which is concerned with transactional justice between two parties in polar positions, distributive justice-based adjudication model (public law adjudication model) offers a site for ideological and public interest contestations and enables courts to operationalise constitutional values and public policy in judicial decision-making by adopting relevant methodological tools, and consequently translates the constitutional ideals into social reality. The study identifies the public law adjudication model as transformative and a centrepiece for transformation.
The study examines the transformative performance of the judiciary in Lesotho over a period of 30 years since 1993 and concludes that the courts in Lesotho have failed to achieve the radical social transformation prescribed by the Constitution of Lesotho. The study dissects the anatomy and pathology of judicial conservatism and minimalism in Lesotho, and the Lesotho judiciary’s failure to implement radical social transformation. It unpacks a panoply of causative factors which have contributed to the courts’ failure to implement the transformation agenda of Lesotho. It then proposes the distributive justice-based public law adjudication model as a transformative tool through which courts in Lesotho may translate the constitutional ideals into social reality by operationalising constitutional values and public policy in judicial decision-making through appropriate legal methods and methodological tools.
In reconstructing the transformative public law adjudication model, the study unpacks the critical features of African indigenous constitutionalism (the Basotho traditional justice system of the Khotla) – underpinned by indigenous values and principles of communalism, ubuntu and restorative justice – and the Colombian Constitutional Court’s progressive jurisprudence and weaves them together into the architectural design and tapestry of the proposed model. The study offers strategies for judges and lawyers to break away from the stranglehold of the existing legal culture of corrective justice and legal formalism. It concludes by making a clarion call for the decoloniality of the African mindset, legal knowledge and legal education, starting with the liberation of the present pool of judges and lawyers from the existing colonial legal culture. Until that happens, transformation in Lesotho will remain a mirage.
vi
Key Words
African indigenous constitutionalism; Colombian Constitutional Court; communalism; constitution of Lesotho; corrective justice; decoloniality; discretionary remedialism; distributive justice; judicial policy-making; jurisprudential conservatism; Khotla; legal formalism; legal culture; private law adjudication; public law adjudication; radical social transformation; structural remedies; substantive democracy; social justice; substantive reasoning; transformative adjudication; transformative constitutionalism; transformative remedies; tutela; ubuntu.