Mohalenyane Phakela
LESOTHO’S Acting Chief Justice ’Maseforo Mahase is probably one of those people for whom the expression “who needs enemies when you’ve got yourself” was coined.
Her highly controversial and seemingly biased conduct and judgements ever since her September 2018 appointment to act in place of the then suspended Chief Justice Nthomeng Majara have given her detractors enough ammunition to oppose her recommendation for the substantive job by former Prime Minister Thomas Thabane.
This week analysts who spoke to the Lesotho Times were unanimous in declaring that she should not be appointed in a substantive capacity let alone remain a judge of the High Court.
This after yet another Court of Appeal ruling went against her after she hijacked the murder-accused former First Lady ‘Maesaiah Thabane’s bail hearing and proceeded to unprocedurally grant the latter bail.
Justice Mahase granted the bail despite that the police had flagged ‘Maesaiah as a flight risk as she had previously fled the country to avoid arrest over allegations that she murdered Dr Thabane’s former wife, Lipolelo on 14 June 2017.
In overturning her 5 February 2020 judgement granting ‘Maesaiah bail, the apex court delivered a scathing assessment of Justice Mahase’s conduct, saying there were “gross irregularities” in the manner that she conducted the bail hearing. The bench said she had acted with “unusual speed” and she did not “exercise her mind properly” and “exercise her discretion judiciously” resulting in the “incomplete and insufficient consideration of relevant issues”.
Justice Mahase’s conduct was also called into question last year. The apex court not only set aside all her rulings but also ordered her not to hear any cases involving the All Basotho Convention (ABC)’s power struggle between Mr Thabane and his deputy, Professor Nqosa Mahao.
The ‘Maesaiah bail judgement is the latest in the ever-growing list of controversies surrounding Justice Mahase ever since her September 2018 appointment by Mr Thabane to act in place of Justice Majara who was suspended that same month by Mr 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, Mr Thabane should have instead recommended her removal from the High Court bench and the judiciary for conduct which has turned Lesotho’s judiciary into a laughing stock and undermined confidence in the justice system.
Lipolelo Thabane was gunned down in cold blood in June 2017 just two days before Mr 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 ‘Maesaiah, Justice Mahase did the unthinkable by wresting ‘Maesaiah’s bail application from another judge and taking charge of it herself.
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. The judge on call that week was Justice Keketso Moahloli, not Justice Mahase.
The sources said contrary to practice, Justice Mahase decided to hear the case herself and granted ‘Maesaiah bail without even allowing the police to oppose the bail on the grounds that ‘Maesaiah 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.
Apart from skipping the country, Deputy Police Commissioner (DCP) Paseka Mokete and one of the witnesses, Thato Sibolla, had intended to argue that ‘Maesaiah should be locked up because she was a dangerous suspect who could intimidate or even kill witnesses to weaken and destroy the case against her.
All these factors, Justice Mahase ignored and it was therefore not surprising that last Friday the apex court not only overturned her judgement but also issued a damning assessment of her conduct as a judge.
“That the possibility of interference with evidence – and particularly with potential witnesses – was a not duly considered, is a serious oversight,” the apex court said in the Friday 29 May 2020 verdict overturning Justice Mahase’s decision to grant ‘Maesaiah bail.
“To intimidate and even kill witnesses expected to testify in upcoming trials is not uncommon…This vacuum in the proceedings of the High Court is almost unthinkable but indeed fatal. It constitutes a gross irregularity and indicates that the High Court did not apply its mind properly and exercise its mind properly and exercise its discretion judiciously.
“The proceedings took place in chambers instead of in an open court. They happened with highly unusual speed. No witnesses were called… There is no indication that the prospects of conviction were interrogated…,” the apex court further noted.
Prominent legal practitioner, Advocate Letuka Molati, said Justice Mahase should not have presided over ‘Maesaiah’s bail application as this could be construed as her way of repaying Mr Thabane for recommending that she be appointed substantive chief justice in place of Justice Majara.
“It really defies logic how ‘Maesaiah who fled from justice and then comes back is granted bail,” said Adv Molati.
“‘Maesaiah’s release was wrong and her bail application should not have been done by Justice Mahase who is known to have a deal with former Prime Minister Thabane that she be confirmed as substantive chief justice.
“There was preferential treatment for ‘Maesaiah while other criminal suspects in a similar position have been denied bail.
“Justice Mahase is highly conflicted and she should not have heard the 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.
Retired lawyer, Adv Kelebone Maope, was more scathing in his assessment of Justice Mahase’s conduct, saying she should not even be allowed to remain a judge after her latest excoriation by the apex court over her bail decision in favour of the former First Lady.
“Justice Mahase has never been convincing and I would not recommend that she be appointed substantive chief justice or even remain a judge.
“I taught her law at the National University of Lesotho (NUL) so I would say I have a good knowledge of her conduct. I have also noted with concern a record of her cases which were overturned by the Court of Appeal.
“I remember way back when she granted bail to a member of one of the security agencies without giving the police a chance to oppose the bail. Soon after the granting of bail, the accused fled the country.
“Granting ‘Maesaiah bail and the manner in which it was done was just a repetition of what she is used to doing. I am not sure whether it is because she does not know what to do or she is simply ignoring the right procedure. There are a lot of issues about which would take forever to discuss but all in all I would say she is unfit to remain a judge,” said Adv Maope.
NUL senior political science lecturer, Mohlomi Mahlelebe, concurred saying Justice Mahase was unfit to remain a judge because she had shown an inclination to protection of “certain interests rather than be impartial as a judge should be”.
“It would be a great mistake for the new government to push for the acting chief justice to be confirmed as the substantive holder of that post because of the manner she has been conducting herself.
“In overserving her conduct and decisions, we saw a person who looked as if she had been given a mandate to protect certain interests and we can never expect such a person to be impartial. It is normal for Court of Appeal to review judgements but the rate or manner in which the apex court has revoked her judgements shows that her conduct is questionable,” Dr Mahlelebe said.
Newly appointed Justice and Law minister Professor Mahao is already on record criticising Mr Thabane’s moves 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 (Mr Thabane) still proceeded to recommend the appointment of someone like that. It is a disaster. 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.
Prof Mahao, who is also ABC deputy leader, was on the receiving end of several judgements by Justice Mahase in court cases relating to his power struggle with Mr Thabane in 2019.
Justice Mahase has the dubious distinction of not only having all her judgements in cases involving the ABC and Mr Thabane overturned by the apex court, but also being subsequently ordered not to preside over such cases due to her apparent bias.
The first of these was 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 including new Prime Minister Moeketsi Majoro to clinch the coveted post of deputy leader.
May 2019 was a torrid month for Justice Mahase as she was on the receiving end of a rare public protest by ABC supporters who 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. Public demonstrations against a judge are unprecedented in Lesotho. The effect of her dragging her feet on adjudicating the matter was to disable Prof Mahao and company from exercising their rights as ABC office bearers while that matter was still pending.
When she finally heard the case, Justice Mahase inexplicably nullified the ABC’s entire elective conference.
Again, the Court of Appeal subsequently overturned her judgement and gave back control of the ABC to the Mahao NEC.
The apex court went further and banned her from ever presiding over cases relating to the ABC power struggle.
With all these preceding and latest controversies, one lawyer who spoke on condition of anonymity, said Justice Mahase has not covered herself in glory and there is no way the new government should allow her to remain on the bench.
“Who needs enemies when you’ve got yourself to shoot yourself in the feet? Justice Mahase has done enough damage to her own reputation through these glaring biased judgements. More importantly, the image of the judiciary has been tainted by her conduct. She should not be confirmed substantive chief justice, let alone remain a judge,” the lawyer said.
