News Without Fear or Favour

I have played my part: AG Phoofolo

 

PRIME Minister Moeketsi Majoro this week ordered the Attorney General, Advocate Haae Phoofolo, to go on terminal leave pending the expiry of his contract in February 2021.

The Lesotho Times’ (LT) Senior Reporter Pascalinah Kabi engaged Advocate Haae Phoofolo to discuss his imminent departure from the top. In this wide-ranging interview, Adv Phoofolo also speaks about his time under two prime ministers, Thomas Thabane and lately, Dr Majoro. He also speaks on the achievements and challenges during his time in office.

LT: It is now more than two years since then Prime Minister Thomas Thabane appointed you as attorney general. How was the journey like until now? 

Adv Phoofolo: The journey was both interesting and eventful. I have been the feature of many newspaper headlines for one good reason or the other. I even told my wife that I am exploring a career in Hollywood.

But jokes aside, I love my country above all. You must remember that I began my professional career in the late 1970s as a senior government bureaucrat. I later became deputy governor of the Central Bank of Lesotho.

Well life happened and I found myself practicing law as attorney both in Lesotho and South Africa. I later became a cabinet minister and later attorney general. I have been rebuked and humiliated publicly at times for one reason or the other.

But in spite of all the challenges and glories that life has thrown at me, I am finally at peace with myself now that I am soon to retire.

Most people who are above 70 years will tell you that when you are a man and you know that you have made an effort to contribute to your country and your kith and kin, you need not beat yourself over anything especially your mistakes. It is part of being human.

I can confidently look myself in the mirror and acknowledge my mistakes.  I also take no pride (nor beat my chest) for my good deeds or valuable contributions.

Lesotho is a beautiful country with a great deal of potential. We just need to first fix our mindset about political issues and the rest will fall into place. I endeavoured to be a prudent legal advisor of government and that is as far as I went and could only go that far.

LT: What are your key achievements as the attorney general? 

Adv Phoofolo: The office of the AG is an institution not an individual. The major achievements of note are that the endemic and consistent reliance on South African practitioners in the moulding of our jurisprudence has been done away with.

We are defining our jurisprudence on our own terms as Basotho legal practitioners. The government robustly implemented that policy and as a result we have seen growth in measurable proportions and a developing maturity and professional aptitude among young Basotho legal practitioners. That is very encouraging.

We have researched and given legal opinions on many controversial issues. Some of our opinions have pleased government while others have not. For example, we have said that any member of parliament can be voted for to be a prime minister.

We have also advised against the infamous clause 10 (of the 2018 government-opposition agreement which seeks to defer the trials of politicians until after the implementation of the multi-sector reforms). We successfully defended the government on various civil matters.

LT: What were some of the challenges you encountered along the way and how did you overcome them? 

Adv Phoofolo: In retrospect, I believe one of the issues that ought to be revisited is the issue of the AG becoming a participant in cabinet meetings. I am aware that our AG is not akin to a Lord Chancellor in England.

I believe that the proximity of the office of the AG with the executive is one of the most uncomfortable issues that must be addressed. The constitution does not define the AG as a member of cabinet. He is merely the principal legal advisor of government and he may participate in cabinet meetings upon invitation when there are legal issues for discussion.

The situation has made it so difficult for an office bearer to enjoy the desired functional and instrumental autonomy when he sits in cabinet and discusses both policy and political issues some of which have no bearing on his legal mandate under the constitution.

I have found it very disturbing that at times one has to manoeuvre between politicians and the legal professionals and the balancing act is the most difficult position anyone can be put in.

LT: You worked under two prime ministers — former premier Thomas Thabane and incumbent Dr Moeketsi Majoro. What can you say about your relationship with the two prime ministers? Were you not frustrated by the recent change of government? 

Adv Phoofolo: Prime Minister Thabane was and is a gifted and charismatic breed of a politician. He had spent close to half a century in the public service. That institutional memory was relevant for his premiership. He was very dynamic but the biggest challenge for him, I believe, was his age and ailing health.

The major advantage that we have with the current premier (Dr Majoro) is his technical expertise and his ability to reclaim the confidence of the international community. We need both at this stage. We need highly qualified and technical leaders who can help craft a future for this country.

The reason why we have been beset with challenges with the advent of coalition governments is because this was a foreign arrangement in our political landscape. The distribution of power in the government bureaucracy became the focal point. There was and there remains a great deal of mistrust between the coalition partners. The more the reason we need to tailor a comprehensive constitutional framework to address the issue.

The change of government was indeed a big challenge not only for me but to all the stakeholders. With the resolution of misunderstandings between my office on the one hand and parliament on the other, this motion (to form a new government) was able to achieve a new configuration in parliament of which I am sure we are the envy of many nations.

LT: Have you ever found yourself on the wrong side of the government after giving your legal advice? 

Adv Phoofolo: I am sorry to disappoint you but I am not sure whether my reaction to this question would be ethical. The legal advice which I proffer to my client cannot be a subject to scrutiny and discussion with a third party.

LT: Was there ever a time when you felt that you were under duress by politicians who failed to distinguish between politics and law? If so, how did you handle the matter? 

Adv Phoofolo: There will always be political pressure especially when you are the principal legal advisor of the government. I cannot speak of one isolated instance because there were far too many. Whatever decision you make as an attorney general it is most likely to impact negatively on some and positively on others.

In the same way, when I was a private practitioner for twenty something years, I attracted a list of both friends and enemies. As a lawyer, and perhaps the young lawyers should be aware of this, a lawyer is not supposed to be concerned about pressures especially those which are political. He needs to be focused on an accurate interpretation of law. But that was complicated by the fact that I doubled-up as both a politician and a lawyer.

I think at some point a lot of legal practitioners make a decision to venture into politics because they harbour a feeling that they will do things better. If you find one legal practitioner who succeeded in shifting the tide in this jurisdiction, I will be the first one to bite my hat.

LT: You and the Acting Chief Justice ‘Maseforo Mahase are the two Judicial Service Commission (JSC) members who fell out with the Law and Justice Minister Professor Nqosa Mahao and the entire cabinet for recommending the appointment of five judges without consulting the government.

It is suggested that you were fully aware of the current administration’s desire to reform the judicial service commission to enable the appointment of judges to be done in a more transparent manner. How then do you justify the JSC’s decision to approve and recommend five judges for appointment by the King before the implementation of the reforms? 

Adv Phoofolo: I am reluctant to comment on this issue because there is a case pending before the High Court and which aims to deal with the issues raised in your question. But the decision of appointment of judges was one that had to be taken and must be taken at some point because the state of the High Court is dire. There is a dire need of judges as we speak and the Commercial Court is not manned by even a single judge.

I believe we need a number of no less than ten judges to put the High Court back in full swing. I just want to conclude this by posing a question. If I had told the Justice Minister (Professor Nqosa Mahao) in advance and immediately after the JSC meeting that we were going to deal with appointment of judges, what would he do about that knowledge?

LT: How is your relationship with the ruling All Basotho Convention (ABC)? What is your reaction to allegations that you were placed on terminal leave pending retirement because of soured relations between you and the ABC? 

Adv Phoofolo: Let us do away with the melodrama for once and be realistic. The demands of the office of AG are so daunting especially now that the country is sailing through a difficult phase of transformation. So, it requires young men and women with the energy to help it move forward. I have been a devoted member of the ABC and remain as such.

Disagreements are likely to happen as in any other organisation but politics of personalities do not help the country surge forward. ABC is much bigger than myself or any other person. It is an organisation that is supported by a large number of Basotho and I am one of them.

 

LT: Are you still going to be an active member of the ABC? If not, which career path will you be pursuing? 

Adv Phoofolo: I am 73 years old. I have no career to pursue. I have three adult children all of whom are married. I have trained and mentored several young practitioners in the profession and they still come to me for counsel. I have made some contributions in the jurisprudence of this country and the law reports bear witness. The only path that I am going to follow is to spend more time with my wife and grandchildren. I will explore other extra-curricular ventures which do not have an adverse bearing on my ailing health.

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