- as her impeachment matter is heard in private
- while she controversially enjoins King Letsie as her co-applicant
FRESH controversy has again hit Lesotho’s judiciary after three judges, sitting as a Constitutional Court, elected to hear a case involving one of their own, Acting Chief Justice ‘Maseforo Mahase, in virtually secrecy instead of an open public court as required by law.
Lawyers interviewed yesterday slammed the decision by judges Tšeliso Monapathi (presiding), Semapo Peete and Keketso Moahloli to hear arguments in Judge Mahase’s impeachment case in chambers, saying it violated every legal rule about how the courts must conduct themselves.
“All Constitutional cases must be heard in public in an open court in full view of the world. There is no law or rule that says a case involving a judge or judges must be heard in darkrooms away from the public glare…What are they (judges) hiding?,” said a lawyer who preferred anonymity, at this stage, for professional reasons.
“Are they also going to keep their judgment a secret which they will only share among themselves…..? this all very shameful.”
The case in question here involves an application by All Basotho Convention (ABC) secretary general, Lebohang Hlaele, to have Judge Mahase impeached over what the politician describes as her gross incompetence. Mr Hlaele accuses Judge 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 Judicial Service Commission (JSC) to kickstart processes to have the acting chief justice impeached.
But Judge Mahase has fired back with her Constitutional application for the recusal of Lesotho’s entire bench from hearing Mr Hlaele’s case (see story below). She accuses most of Lesotho’s High Court judges of gross incompetence. She fears 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 cites Judge Monapathi, the presiding judge in her case yesterday, among the “insubordinate” judges.
It is this recusal application that is at issue here. Judges Monapathi, Peete and Moahloli elected to hear it in chambers, depriving the country and public of an opportunity to hear Judge Mahase’s elaboration of why he deems her colleagues incompetent and unfit for purpose. The three judges reserved judgment to 30 October 2019 after hearing arguments from both sides.
Normally, all constitutional matters are held in open court because of their public interest nature. There is no precedent of a constitutional matter ever being heard in secret. Justice Mahase wants all her colleagues to recuse themselves from hearing the impeachment case, in favour of foreign judges, because she argues her rights to a fair trial will be violated if her “incompetent” colleagues were to sit in judgment of her, among other reasons.
Adding to the drama is Justice Mahase’s decision to enjoin His Majesty, King Letsie 111 as her co-applicant in the case. This has got Mr Hlaele seething (see story below). The ABC secretary-general says this amounts to dragging His Majesty through the mud as he was “obviously” not consulted before being enlisted as a co-applicant. The King had constitutionally appointed all the judges on the bench and he could now not turn around and say they are all “incompetent” and unfit to hear a case, after he had lawfully appointed them, contends Mr Hlaele.
Prime Minister Thomas Thabane; Attorney General Haae Phoofolo and the Judicial Service Commission (JSC) are the other applicants in the matter. Mr Hlaele and the Law Society of Lesotho are cited as the respondents.
Some sources said the case was held behind closed doors because of the highly sensitive information against some of the judges whose recusal is sought by Judge Mahase. But some lawyers insist that is the very reason why an open court would have been warranted.
All constitutional matters should be heard in open courts despite the sensitivities of the issues being canvassed.
“We all have every right to know why Judge Mahase thinks all her colleagues are useless and unfit to hear her case…,” said a senior advocate who also did not want to be named.
“If Judge Mahase deems her colleagues incompetent, then why should he allocate them to hear any case involving my client. I also don’t want to put my clients at the mercy of incompetent judges…
“This is a matter of legitimate public interest. We have a right to know what the judges think about one another….. Disallowing us from what should be an open court will inevitably give rise to suspicions that the judges are covering up for each other…..That inevitably puts them into ill-repute.”
After the proceedings in chambers yesterday, Advocate Rethabile Setlojoane, for the applicants, told the Lesotho Times that “judgement had been reserved for 30 October 2019”. He refused to elaborate on why the matter had not been handled in an open court.
Justice Mahase wants all local judges recused from the imnpeachment case. She alleged that one of the judges, Justice Lineo Chaka-Makhooane, was unhappy with her because the latter was a “close friend’ to the suspended Chief Justice Nthomeng Majara.
She also accused other judges – Justices Thamsanqa Nomngcongo, Monaphathi, Keketso Moahloli and Molefi Makara – of refusing to take orders from her. She has alluded to the fact that Justice Moahloli is currently facing disciplinary charges from the JSC which she chairs. As a result Judge Moahloli cannot be fair to her.
“By right every case, even those that are not constitutional, should be heard in an open court. However, we were told that this matter involved very sensitive judicial information which the court could not risk being disseminated to the public or rather having the media to publicise it, hence the matter was heard to finality in chambers,” another lawyer said.
He added: “ I have problems with that reasoning….As long as there is information that judges feel must be hidden from the public, then it creates a serious problem. The judiciary must be an open book. We must know why a judge is being disciplined and the conduct of judges is an issue of immense public interest……I want to hear Judge Mahase’s arguments against his colleagues. Why should they be incompetent to hear her case yet she assigns them to hear my case.
“We are a constitutional monarch. The constitution of Lesotho is the supreme law on the land. If one, irrespective of his or her position, decides to challenge any section of the constitution, that automatically becomes a public interest matter because the case itself requires the interpretation of the law which is supreme and governs all citizens of the country. There can never be an exception to that rule.
“A constitutional matter is very serious which explains why the quorum always comprises of three judges…. unlike other matters which can be heard by one judge. What the judges have done in hearing such an important matter in private amounts to short changing this nation.”