IF ever Acting Chief Justice ’Maseforo Mahase’s detractors needed any ammunition to oppose her recommendation by outgoing Prime Minister Thomas Thabane, it was supplied to them by the judge herself last Wednesday.
This week, analysts who spoke to the Lesotho Times were unanimous in their chorus of condemnation for Justice Mahase after she allegedly hijacked the murder-accused First Lady ’Maesaiah Thabane’s bail hearing and proceeded to unprocedurally grant the latter bail.
This was despite that Ms Thabane is a flight risk as she previously fled the country to avoid arrest over allegations that she murdered Dr Thabane’s former wife, Lipolelo on 14 June 2017.
The ’Maesaiah hearing is the latest in the growing list of controversies surrounding Justice Mahase ever since her September 2018 appointment by Dr Thabane to act in place of the then Chief Justice Nthomeng Majara who was suspended that same month by Dr Thabane on the grounds of alleged misconduct and incompetence.
While the analysts say the jury is still out on Justice Majara’s time at the helm of the judiciary, there are more clear-cut issues which would make for prima facie (on the face of it) charges of incompetence and misconduct against Justice Mahase.
The analysts say that instead of recommending to King Letsie III her appointment as substantive chief justice, Dr Thabane should instead be recommending her removal from the bench for conduct which has turned Lesotho’s judiciary into the butt of jokes and undermined confidence in the justice system.
Lipolelo Thabane was gunned down in cold blood in June 2017 just two days before Dr Thabane’s inauguration for his second stint as prime minister.
Just when it appeared that the police had made a breakthrough in the case which shocked Lesotho and the international community with the arrest and arraignment of Ms Thabane, Justice Mahase shocked all and sundry by taking charge of Ms Thabane’s bail application.
According to authoritative judicial sources, the bail application was supposed to have been heard by the judge on call for bail applications and other urgent applications as per practice. That judge on call this week was Justice Keketso Moahloli, not Justice Mahase. Last week, it was Justice Tseliso Monapathi. The sources said contrary to practice, Justice Mahase decided to hear the case herself and granted the First Lady bail despite spirited opposition from the State which had argued that Mrs Thabane was a flight risk as she had already skipped the country after she had been called in for questioning. Now that she had been formally charged, she would have reason to abscond permanently, the State had argued.
As if that was not controversial enough, it has since emerged that Ms Thabane’s bail was only paid on Thursday a day after she had already been released.
Prominent legal practitioner, Advocate Letuka Molati, blasted Justice Mahase for presiding over Ms Thabane’s bail application, saying she should not have involved herself as this could be construed as her way of repaying Dr Thabane for recommending that she appointed substantive chief justice in place of Justice Majara who agreed to go after being suspended by the premier in September 2018.
“It really defies logic how Ms Thabane who fled from justice and then comes back is granted bail,” said Adv Molati, adding, “This sets a bad precedence”.
“The First Lady’s release was premature and wrong. It should not have been done by Acting Chief Justice ’Maseforo Mahase who already has a deal with Prime Minister Thabane that she be confirmed in her acting position. Any other judge could have presided over that case and besides the law is very much against cases being heard in chambers as there has to be transparency at all times. Justice must not only be done, but must be seen to be done hence the case should have been heard in an open court.
“The big question is why was there this preferential treatment for the First Lady when other clients in a similar position were denied bail? Why her in particular?
“When a judge has listened to both parties in a matter and is convinced that the accused is a flight risk the bail should be denied but this wasn’t the case as we know that the Prime Minister is still trying to get Acting Chief Justice Mahase to be confirmed as the new chief justice. For that reason, Justice Mahase is highly conflicted. Any other judge could have heard this application,” said Adv Molati whose clients include murder-accused former army commander, Lieutenant General Tlali Kamoli.
Among other charges, Lt-Gen Kamoli is accused of the 25 June 2015 murder of army commander, Lt-Gen Maaparankoe Mahao. Lt-Gen Kamoli is languishing in remand prison having been denied bail since his arrest in October 2017.
National University of Lesotho law lecturer and All Basotho Convention (ABC) deputy leader, Professor Mahao, criticised the latest moves by Dr Thabane to have Justice Mahase appointed substantive chief justice, saying “it cannot be right… to appoint someone who has so patently proven herself not to be competent for the job”.
“I don’t know how someone can appoint someone (Justice Mahase) who has so patently proven herself to be incompetent for the job…And then he (Dr Thabane) still proceeded to recommend the appointment of someone like that. It is a disaster. But it just shows that leaders in this country don’t have the interests of the nation at heart, it is all about themselves and their friends,” Prof Mahao said.
The ABC deputy leader was on the receiving end of several judgements by Justice Mahase in court cases relating to his power struggle with Dr Thabane in 2019.
Justice Mahase first made headlines with her January 2019 ruling which upheld the ABC’s disqualification of Prof Mahao from contesting the party’s February 2019 elective conference. Her decision was immediately overturned by the Court of Appeal, paving the way for Prof Mahao to contest and beat a strong field of ABC heavyweights to clinch the coveted post of deputy leader.
May 2019 was an especially torrid month for Justice Mahase who was on the receiving end of a public protest by ABC supporters after they accused her of bias and dragging her feet in a case in which three ABC legislators – Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) wanted the election of Prof Mahao and his allies into the party’s national executive committee (NEC) nullified.
It was also the month in which, in an inexplicable turn of events, Justice Mahase nullified the ABC’s entire elective conference.
The Court of Appeal subsequently rescinded Justice Mahase’s judgement nullifying the elective conference and giving control of the ABC to the old NEC.
The apex court even went as far as banning her from presiding over cases relating to the ABC power struggle in 2019.
With all the preceding controversies, one lawyer who spoke on condition of anonymity, said Justice Mahase would have done well to stay away from the First Lady’s bail application.
“Instead, she shot herself in the feet by presiding over the case and openly flouting the procedures to secure the First Lady’s release. Who needs detractors when you can be your worst enemy? She (Justice Mahase) may be doing Ms Thabane favours but she is not doing herself any in the process. A different government will certainly review her conduct and she will have to account for her controversial actions,” the lawyer said.
Never-the-less Dr Thabane appears oblivious to Justice Mahase’s alleged shortcomings and questions that have been raised about her suitability for the top job. The premier has recommended Justice Mahase’s appointment as substantive chief justice to His Majesty King Letsie III.