‘Chief Justice must go now’

MASERU — The Law Society of Lesotho wants Chief Justice Mahapela Lehohla removed for appointing an acting judge that the society had ordered lawyers to boycott.  
The call for the impeachment of Justice Lehohla is part of the resolutions that the lawyers’ body made at its special conference last Thursday.
The society is angry that the chief justice appointed Justice Peter Cullinan to preside over a case in which a newspaper editor was facing trial for contempt of court.
In 2004 the society resolved to boycott Justice Cullinan on account that he had passed what it called “questionable judgments” and that he was way past the legal retirement age for judges, 75. 
The society had said that it believed Justice Cullinan, who was Lesotho’s chief justice between 1988 and 1991, had been recalled temporarily to deal with special cases in which the government had interests.
Justice Cullinan, who had been based in South Africa since his retirement, arrived in Lesotho three weeks ago to preside over the case.
His presence immediately sparked an uproar in the legal fraternity.  
A fortnight ago prominent lawyers Haae Phoofolo and Hopolang Nathane found themselves in trouble after they appeared before Justice Cullinan.
Phoofolo was appearing for the defence while Nathane was representing the state. 
The violation, which the two lawyers later said was a mistake, angered the society which immediately called a special conference to deal with matter.
Their pleas for a reprieve on condition that they had already violated the order and should therefore be allowed to continue with the case fell on deaf ears as the conference insisted that they should withdraw from the case.
It was in that meeting that the society resolved that Justice Lehohla be impeached for hiring Justice Cullinan against the lawyers’ protests.
“The society calls for the impeachment of the chief justice…,” said part of the resolutions which were passed last Thursday but were only officially released to the media on Tuesday.
It said Justice Lehohla had allocated a case to Justice Cullinan despite being “well aware of the said 2004 Law Society Resolution”. 
“Thus the society discerns to chief justice and Judicial Service Commission’s (which he chairs) unwillingness to cooperate with the society (a very important stakeholder in the administration of Justice in the Kingdom) and the resultant debilitation of the crisis in the administration of justice,” the society said. 
Lawyers have in the past complained that the constitution of the Judicial Service Commission, a board responsible for appointing judges in Lesotho, is heavily tipped in favour of the government. 
This, they said, was leading to a bench that was perceived as too friendly to the government.
The special conference also resolved that the 2004 resolution to boycott Justice Cullinan should remain in force and that Nathane and Phoofolo should face disciplinary action for violating the order.
“The two members namely H.E Phoofolo and Adv H. Nathane will appear before the Society’s disciplinary committee to answer charges relating to their infraction of the said resolution by appearing before Mr Justice Cullinan in CRI/T/90/09 Rex v Rev. Mathibeli; inspite of the Conference’s injunction that they withdraw from the said case.”
Phoofolo was representing Mathibeli while Nathane was prosecuting.
Their attempt to withdraw at the last minute was met with threats of prosecution for contempt of court by justice Cullinan.
It is not clear when the two lawyers will appear before the disciplinary committee.
Although the society said the council was supposed to see to it that these resolutions are effected it is not clear how it will manage to get the chief justice impeached.
It is extremely difficult to impeach the chief justice or any High Court judge.
Section 121 (subsection 3) of the constitution says the chief justice or any other judge maybe removed from office only for his or her inability to perform the duties of his office or for misbehaviour. 
Also, subsection 4 of the same section says the chief justice or any judge can only be removed if a tribunal appointed by the King to investigate misconduct recommends removal from the bench.  
A lawyer who spoke to the Lesotho Times on condition of anonymity called the resolution to impeach the chief justice “somewhat over ambitious because it is very unlikely to happen and the society knows this well”.
“I think they are just wasting their time on that one,” he said.
“They must deal with more substantive issues that they have a reasonable chance and capacity to solve,” he said.
Law Society president Zwelakhe Mda said the society will not be forced to back down on the impeachment demand because “it is the right thing to do”.
“Implementation is another matter. We believe that this is a very important stance taken by the society,” Mda said.
“People must remember that the Law Society is a statutory organisation set up to contribute positively to the judicial and be the watchdog of the rule of law,” Mda added.
“So when it makes such a decision it must be taken seriously.” 
“We are saying that there are serious problems in the judicial system and if you dig deeper you will find them. They are there for all to see.”
“We must take a holistic approach to the issue. The issue of how we are going to fulfil the resolution will be dealt with later. What matters now is the spirit and the motive of the resolution.”
In June this year the law society established a commission to investigate was it called a “crisis in the judiciary system”.