Mohalenyane Phakela
The Constitutional Court has dismissed Acting Chief Justice ‘Maseforo Mahase’s application for the recusal of all local judges from presiding over All Basotho Convention (ABC) secretary general, Lebohang Hlaele’s application for her impeachment.
In dismissing her application, Justices Tšeliso Monapathi, Semapo Peete and Keketso Moahloli, said local judges were more than capable of handling the application without any bias or the “collegiality” which Justice Mahase and her co-applicant, Attorney General Haae Phoofolo, had argued would affect their judgement.
The matter was brought before the Constitutional Court and a verdict was delivered in chambers last October where the judges simply stated that that they had recused themselves from Mr Hlaele’s application. They did not give any reasons for their decision, saying they would do so at a later date. This gave the impression that they had ruled against all local judges presiding over Mr Hlaele’s application to have Justice Mahase impeached for alleged misconduct and gross incompetence in connection to her controversial 2019 handling of the cases pertaining to the power struggle within the ABC.
But it in their written judgement which was made available last week, Justices Monapathi, Peete and Moahloli, ruled against Justice Mahase, saying local judges “were quite able and competent…to determine the issues in the main application …of Mr Hlaele and the reliefs he seeks”.
The trio said although they would recuse themselves, other local judges were still free to preside over Mr Hlaele’s application.
“We are of the view that it was unfair for the Attorney General to allege that we are “incompetent” to deal with the (Hlaele) matter… nor does “collegiality” have the effect of disqualifying us from presiding over the matter,” the three judges state.
“Imagined perceptions are difficult to assess but seemingly they do exist in the minds of the applicants who deposed affidavits. Collegiality and real or imagined perceptions aside, we should make it very clear that we are quite able and competent as judges of the High Court of Lesotho to determine the issues in the main application of Mr Hlaele and the reliefs he seeks. Of significance, it should be noted that the Acting Chief Justice is not specifically pleading “collegiality” as such in her affidavit. She is in fact saying that it is the uncordial relationships she has with some judges that have caused her to have some perception that the panel and in fact the whole bench of the High Court will not be impartial in determining the constitutional issue in the main application.
“It is our firm decision that having regard to all recognised principles on recusal applications, the real or imagined likelihood of bias may be illusive depending upon the particular circumstances of each case. We state without equivocation that the judiciary in Lesotho is inextricable embroiled in a political quagmire and it is only proper that for the sake of public interest our recusal is only proper without being timed or cowardly or incompetent as alleged in the affidavits.”
The trio said although they would recuse themselves, other local judges were still free to preside over Mr Hlaele’s application.
“As for the prayer seeking the recusal of the whole bench of judges of the High Court, we truly find it difficult on principle to speak for them because this in fact would necessitate the sitting of the whole bench to determine the institutional recusal which in turn would activate the doctrine of necessity and potential conundrum. We have come to a firm decision to recuse ourselves with all honour and clean conscience as we hereby do. Because of its constitutional importance, we feel that our recusal will not present a gross injunction.
“We hope our recusal in this matter shall not open the flood gates for a deluge of recusals in every case. Impartiality can never be an absolute concept in our times. Judges are all human regardless of rank. They have all taken a solemn oath of office which binds their conscience and is a bell that should sing at all times. Prevailing distrust and lack of confidence in the judiciary must be discouraged…,” the judges ruled.
The Constitutional Court first heard the recusal case on 2 October 2019. Justice Mahase’s co-applicants were the Judicial Service Commission (JSC), Prime Minister Thomas Thabane, Attorney General, Haae Phoofolo, and His Majesty, King Letsie III.
Justice Mahase’s recusal case was based on an application by Mr Hlaele to have her impeached over what the politician describes as her gross incompetence. Mr Hlaele accuses Justice Mahase of several acts of commission and omission which he says have put Lesotho’s judiciary into disrepute, warranting her removal from the bench. Mr Hlaele is seeking an order for the JSC to begin processes to have Justice Mahase impeached.
But she fired back with her Constitutional Court application for the recusal of Lesotho’s entire bench from hearing Mr Hlaele’s case. She accused most of Lesotho’s High Court judges of gross incompetence. She said feared that some will rule unfavourably against her because of her differences with them. Some had been insubordinate and refused to take instructions from her since her appointment as acting chief justice, she claims. Ironically, Judge Mahase cited Justices Moahloli and Monapathi, the judges in her recusal case yesterday, among the “insubordinate” judges.
“As acting chief justice, I am the chairperson of the JSC and as such I have to deal with numerous complaints from members of the public about judges of the High Court. I also in that capacity in the JSC have mandate, together with other members, to also deal with the discipline of some of my colleagues who are currently presiding over this case.
“Obviously, whatever negative or adverse decision the JSC may come to in the future, the concerned judge may feel that the JSC may have been adversely influenced by the chairperson because that particular judge may have presided over this matter. Consequently, I aver that this is a case where all judges of the High Court bench have to recuse themselves so that aspersions are not case in the future,” Justice Mahase said in her court papers.
She also accused other judges — Justices Thamsanqa Nomngcongo and Molefi Makara — of refusing to take orders from her.
She said it was also important for all local judges to recuse themselves from the case on the grounds that the country was presently polarised on political lines to an extent that the public was always going to be suspicious of any outcome of the case against her.
However, her application was dismissed by Justices Monapathi, Peete and Moahloli.
