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Maliehe blasts Court of Appeal

by Lesotho Times

Bereng Mpaki

ALL Basotho Convention (ABC) stalwart and chairperson of the party’s old national executive committee (NEC), Motlohi Maliehe, has blasted the Court of Appeal for the recent judgement which revoked the appointment of the old NEC as the governing structure of the fractious party.

Mr Maliehe accused the apex court of failing to protect the party’s constitution in its judgements and exacerbating divisions in the troubled ruling party which is divided into the old and new NEC factions.

In a thinly veiled attack on Professor Nqosa Mahao who was elected deputy leader at the ABC’s February conference, Mr Maliehe said the apex court had failed to correctly interpret the ABC constitution and allowed it to be used by “newcomers” in their quest to usurp power.

He said this in the wake of last Friday’s Court of Appeal ruling which overturned Acting Chief Justice, ‘Maseforo Mahase’s controversial 8 May 2019 order which nullified the ABC’s 1-2 February elective conference and gave  control of the party to the old NEC.

Speaking at an ABC rally early this week in Lebakeng, Qacha’s Neck, Mr Maliehe said they were hugely disappointed by the manner in which the apex court had handled cases involving the party.

“We are very disappointed and shocked by the courts of law who are siding with those who say that a person who has not properly joined the party as prescribed by the party constitution should be a member of the party’s national executive committee,” Mr Maliehe said at the rally which was attended by ABC leader and Prime Minister Thomas Thabane, several cabinet ministers and legislators.

Mr Maliehe said in delivering its verdict, the Court of Appeal had ignored clauses of the ABC’s constitution which clearly stipulated that a member must have been part of the branch before graduating to the constituency committee to be eligible to contest the NEC elections.

Mr Maliehe’s gripe is that the apex court overturned the disqualification of Prof Mahao and cleared the way for him to contest the deputy leader’s position which he won. Prof Mahao was allowed to contest after the party’s Koro-Koro constituency committee proved that he had been in the committee’s structures after being co-opted for his special skills as an academic despite not having started at the branch level.

“I know my leader Ntate Thabane will talk about the need for this party to unite but how can we achieve that unity when the institutions (the courts) that are entrusted with protecting the constitutions of organisations such as ours are allowing those constitutions to be violated?

“We did not foolishly establish those laws (constitution) but we formulated them to ensure order within the party. We cannot have a situation where someone just emerges from nowhere and wants to lead the organisation without following proper procedures.”

This is not the first time Mr Maliehe has attacked the apex court for what he sees as its biased rulings in favour of Prof Mahao.

Mr Maliehe first saw red when the Court of Appeal issued a last minute judgement on 1 February which overturned Prof Mahao’s disqualification from the NEC elections and paved the way for him to contest the deputy leader’s post.

The outgoing National University of Lesotho Vice Chancellor went on to clinch the deputy leader’s post after beating a field of seasoned ABC stalwarts, namely Finance Minister Moeketsi Majoro, Public Works and Transport Minister Prince Maliehe and Mr Motlohi Maliehe himself.

As deputy leader, Prof Mahao became the frontrunner to succeed Dr Thabane in both party and government when the veteran leader eventually calls it a day.

Others who were elected into the new NEC are Dr Thabane’s son-in-law, Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Chalane Phori (deputy chairperson), Nkaku Kabi (deputy secretary general), Tlali Mohapi (treasurer), Likhapha Masupha (secretary), Montoeli Masoetsa (spokesperson) and ‘Matebatso Doti (deputy spokesperson).

However, Prof Mahao and his ‘new NEC’ colleagues have not been able to assume control of the party after their election was flatly opposed by Mr Maliehe and other members of the old NEC. The old NEC rejected Prof Mahao on the grounds that he was an “upstart” who could not be allowed to deputise Dr Thabane in a party they formed in 2006.

Prof Mahao and the rest of the new NEC’s election was subsequently challenged in the High Court by the trio of prominent ABC legislators Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

The trio filed a court application on 11 February seeking an order to nullify the outcome of the ABC’s elective conference on the grounds that the polls were marred by “massive vote rigging”.

And with all eyes trained on the much-postponed case, Justice Mahase stunned all and sundry on 8 May 2019 when she went on to deliver judgement in a separate but similar application brought before her by the little-known trio of ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.

Justice Mahase granted an order which nullified the ABC’s 1-2 February conference on the grounds that the ABC constitution allegedly did not provide for the holding of NEC elections. She ruled that the old NEC should remain in office in an interim capacity for a year and use the time to amend the ABC constitution to provide for the holding of NEC elections.

The judgment earned Judge Mahase a lot of flak with her critics insisting she is betraying the principle of impartiality required of all judges by showing open hostility against Prof Mahao.

What made Justice Mahase’s judgement even more questionable in the eyes of her critics was that it was issued while a similar application by the trio of Messrs Lehana, Sello and Mohapinyane was still pending before her.

She issued on the order on the same day that she was supposed to hear the Lehana, Sello and Mohapinyane application but did not do so on the grounds that she was “ill”.

However, last Friday the apex court overturned her judgement after an appeal by the Mahao camp which had accused Justice Mahase of issuing a “fake judgement” in a case where they were not cited even if it affected their rights.

The Court of Appeal bench comprised of the court’s President Kananelo Mosito, Justices Philip Musonda (from Zambia), Petrus Damaseb (Namibia) and the Zimbabwean pair of Moses Chinhengo and Tafuma Mtshiya.

In addition to overturning Justice Mahase’s judgement, the apex court referred the legal battle for the control of the ABC back to the High Court which began hearing the case on Tuesday and not on the 14th of June as Justice Mahase had initially ordered.

The apex court also directed that the case should be heard by a different judge and not Justice Mahase who the Mahao faction accuses of dragging her feet in the matter.

Meanwhile, ABC leader, Dr Thabane reiterated his plea to party members to withdraw all court cases they had brought against each other. He said the party affairs and disputes were best resolved through dialogue and not by the courts.

“I have said it before and I will say it again that the pending cases should be withdrawn from the courts of law. I would also like to inform the courts that I, as the leader of ABC do not agree with the idea of dragging the ABC into the courts of law,” Dr Thabane said.

His call came against the background of two failed attempts to get the warring ABC’s NECs to iron out their differences which threaten to split the party and even collapse the almost two year-old governing coalition where the ABC is the major partner.

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