Every now and then, a Mosotho emerges who makes me proud of my Basotho heritage. Two Basotho have made me immensely proud over the past week. Attorney General Ntate Haae Phoofolo is one of them. The other is our indefatigable Auditor-General Lucy Liphafa. In fact Mme Liphafa is our very own Thuli Madonsela. For anyone with the brain of a herd-boy and hence a poor grasp of current affairs, Thuli Madonsela is that brave woman who stopped the dancing, singing, giggling, philandering Jacob Zuma from completely destroying South Africa.
Were it not for Mme Madonsela, South Africa would have long been wholly hijacked and taken to India by the Guptas; the three well known upper-world criminals and bags of filth who are now on the run after stealing more than R200 billion from South Africa’s state institutions and national treasury. That is an amount a hundred times more than Lesotho’s gross domestic product. Those who were behind all efforts to try and help the Guptas establish a foothold in Lesotho ought to be rubbing their hands in shame. If the three Gupta crooks could cage a president of such a giant country and capture such a gigantic state, just imagine what they would have done to tiny Lesotho if they had succeeded in establishing here. They would literally have put Lesotho in a small parcel and sent it to India by DHL.
Mme Liphafa is trying hard to achieve the best for Basotho by exposing the thieving crooks in the state’s financial apparatus. Unlike Mme Madonsela – the former Public Protector in South Africa – she nonetheless has no constitutional powers to enforce her recommendations. Hence they are routinely flouted. That has not dampened her spirits nonetheless. She keeps trying and trying to expose the mismanagement of the national purse. That’s how is ought to be. Mme Liphafa is our very own Iron Lady. She is the kind of woman required in our politics if we are ever going to make headway. Unfortunately, our politics attracts more papangushtos than brainy human beings like Mme Liphafa. Just imagine a political landscape wherein you never have to encounter names like Bokang Ramatsella but only the Liphafas the Majoros of this world. Lesotho would become a jewel in no time.
Mme Liphafa’s audits of the government pursue are not only meticulous in terms of their exposure of the looting of taxpayer monies, they are also as detailed as they are lucid.
Consider her scrutiny of the theft at the Lesotho Mounted Police Service (LMPS) where the signature on an invoice to be paid tallied with that of the very procurement officer responsible for receiving it and facilitating its payment. Never mind that the amount involved was not huge, it is that kind of detail that makes Mme Liphafa a meticulous servant of the people. What country have we become if a procurement manager employed by the police force is also a supplier to the same force, receives the goods supplied by him/her, vouches for their quality and pays himself for the “excellent” services rendered by him. What crass nonsense is that?
With Mme Liphafa, there is nowhere to hide however. She will sieve through everything from the hundreds of millions spirited away by the real big crooks to the small amounts stolen by the petty criminals. That’s what makes her our very own Iron Lady.
In the years she has audited the government’s books, it is noteworthy that no government has ever received a clean audit. She has qualified all her audits. When will our governments learn to manage the national fiscus properly? This will only happen when the majority of Basotho first strive to understand that there is an office of the auditor-general led by the indefatigable, erudite, hardworking, scholarly, persevering and sagacious Mme Liphafa. And when a majority of Basotho learns of Mme Liphafa’s existence, they must then actually read her reports and strive to understand them? When that happens, Basotho might then be in a position to punish transgressing governments. That won’t of course happen in my lifetime but perhaps in a thousand years. It must happen however regardless of the time it will take. For now, it seems it’s all looter continua. Mme Liphafa must nonetheless keep up the good work.
Another Mosotho who has made me proud is Ntate Phoofolo, a veteran lawyer of many years standing. Ntate Phoofolo is a very candid man who seeks to achieve justice for Basotho. For the many among us who have a poor grasp of history, Ntate Phoofolo is an accomplished lawyer, politician, father, grandfather and possibly great grandfather. He has served as a Member of Parliament, a senator, a cabinet minister and now attorney-general, among the many venerable posts he has held. He also earned a place in the Guinness Book of Records by being the shortest serving Prime Minister ever anywhere in the world. Ntate Phoofolo was a Prime Minister of Lesotho for a short stint of three hours on 17 August 1994. Had Ntate Phoofolo stayed in office for much longer, and served for the nearly two decades that Ntate Mosisili was in office, Lesotho would perhaps be a better place. After some manouvering his three hour reign as Prime Minister was extended and he served for another 20 days, giving him a total of three weeks in power as Prime Minister. Still a ground breaking short record. I wish he had served for all the time that Ntate Mosisili served. Lesotho would be Africa’s Kuwait.
Last week Ntate Phoofolo made some honest remarks in an interview with the Lesotho Times, about how the bloodletting between Ntate Motsoahae and Mme Majara has paralysed the delivery of justice in Lesotho. I like men and women who put the country first and are never afraid to speak the truth to power.
Adv Phoofolo said that the acrimony between the executive and the judiciary had paralysed the courts system and ultimately the administration of justice as “those who were supposed to be hearing cases were themselves involved in lawsuits”.
He also called for the abolition of the office of the President of the Court of Appeal, saying as part of the envisaged reforms, the two offices of appeal court president and chief justice should be merged into the office of the Chief Justice who should become head of the entire judiciary. If this happens, this obviously means Ntate Kananelo Mosito’s hopes will be permanently dashed. I know that him and Ntate Phoofolo enjoy cordial relations. This howeber did not stop Ntate Phoofolo from telling the truth.
When a Mosotho man or woman emerges to challenge convention and advocates what should otherwise be common sense, I feel truly proud.
I have never quite understood the rationale behind having a Chief Justice and then a President of the Court of Appeal. And below that strata the various courts including the High Court and the Magistrates Court.
It is perhaps because of that irrational arrangement that we once experienced that dogfight between two highly esteemed men of the robes Ntate Michael Ramodibedi and former chief justice Mahapela Lehohla. Ntate Ramodibedi served as the president of the Court of Appeal while Ntate Lehohla was chief justice.
The two men almost caused an accident of imaginable proportions as they battled to overtake each other so that the real “boss” would arrive at King Letsie’s birthday celebrations first. So bad was their race that it was by sheer luck that a convoy of state vehicles going to King Letsie’s birthday celebrations in 2012 was not wholly derailed in a long smash-pile. Michael Schumacher and Lewis Hamilton, the greatest car racers of all time, would surely have been green with envy at seeing the speeds at which the two judges were competing to overtake each other. The contest between the two judges was moronish in the eyes of some observers. It nonetheless emanated from the convoluted roles of the offices of Chief Justice and president of the Court of Appeal.
The continuation of these two offices is as unacceptable as it is wholly untenable. It has partly caused the current paralysis in the judiciary. Lines of accountability in the judiciary must be simple and straight forward.
In many a jurisdiction the world over, the chief justice is the most senior judicial officer responsible for the administration of justice in a country. South Africa also once had a convoluted system like ours but abolished it in favour of a simple straight forward judicial structure in which the chief justice is at the helm.
In our system, it is quite difficult to figure out who is senior between the chief justice and the president of the Court of Appeal and who is ultimately responsible for the administration of justice in the country. So from that perspective judges Ramodibebi and Lehohla’s dogfight was probably justified. Instead of a car race, they should have been given boxing gloves and a ring to settle the matter once and for all. Unfortunately, that did not happen and we are still saddled with the problem.
In South Africa, Chief Justice Mogoeng Mogoeng is the head of the constitutional court which is the last court of appeal in all matters constitutional. He is rightly christened chief justice. He is also the head of the entire judiciary.
Another fellow (I have forgotten his/her name) is the president of the Supreme Court of Appeal. The supreme court of Appeal is the court of last resort in all matters not constitutional. Below the supreme court of appeal are the various divisions of the High Court situated in South Africa’s nine provinces and the specialist courts like the tax court, the labour court, the land claims court etc. Below the high courts are the magistrates courts.
Lesotho is too small to have a separate constitutional court to hear constitutional matters only. Unless of course Mophato Monyake of the Progressive Democrats fame returns to resplendent our political scene with his fancy ideas of a federal system in which the herd-boys and herd-girls in Thaba Tseka will have their own provincial government with their own provincial parliament and metro police. But since there is a greater chance of humanity perishing in a giant once off collision between planets Earth, Jupiter, Saturn and the Sun, there is no chance of Monyake and his Progressive Democrats (however few they are) forming a government. The efficacy of a separate constitutional court hearing only constitutional matters does not need further exploring.
What Lesotho needs is a Supreme Court comprising of about seven judges headed by the Chief Justice. These seven judges would then sit as a Constitutional Court in all matters constitutional with any decision of a majority of four of the seven judges carrying the day in all matters constitutional. A quorum of three would hear all appeals in all matters not constitutional in nature with the decision of a majority of two judges carrying the day.
Below the Supreme Court will be the High Courts which can hear all cases including constitutional matters. However, all judgments of the High Court on constitutional matters would only take effect if confirmed by the Supreme Court sitting as a Constitutional Court. The High Court would also have specialist divisions such as the Labour Court, the Tax court etc and car wash dispute court, if necessary. Below the High Court will be the magistrates courts stationed in all districts Monyake style.
Such a simple straight forward court system is what we need, among other things required to achieve the efficient administration of justice. It goes without saying that because of the nature and importance of their work, judicial officers need to be well compensated. This is where I harbour serious misgivings about Judge Majara being berated for not sticking to a stipulated limit to rent a home for only M4000. Surely, does anyone out there want our chief justice to reside in a shack? What would that say of us as a nation if the chief justice of the USA paid her a courtesy call in that shack?
Let’s all take a deep breadth and consider these words of wisdom from Advocate Phoofolo. “Every informed citizen now knows that there is tension between the judiciary and the executive. One can safely call this a power struggle where two bulls in a kraal try to establish or wield authority over each other. As a consequence the grass is now suffering.
“The apex court is not functioning. The High Court is busy with lawsuits involving people who should be resolving the lawsuits brought to it by the public……..In all this mess each bull cites the constitution as its weapon in the fight against the other…..
“I cannot remember a single day during my time as a legal practitioner in the South African Courts when there was an empty court from 9am till late afternoon. But in Lesotho you will see an empty one every day. Either a judicial officer is not there or the prosecutor or lawyer.
“I have also heard that the High Court will soon be going on a winter vacation. I never heard of that in South Africa. What really necessitates such a thing in Lesotho, I really don’t know.”
I have had to repeat these words of wisdom from Attorney-General Phoofolo published in the Lesotho Times last week because they are indeed good words of wisdom.
We have a serious problem in the judiciary. Why should judges take a winter break to go and cuddle their wives or husbands when there is a backlog of thousands of cases? This must rank as the most irresponsible thing our judiciary could ever do. We need our judges in the courts to deliver justice not on winter breaks to avoid the cold. We all are not happy with the current winter cold but imagine what would happen if we all asked for winter breaks. The country would come to a standstill. So you are absolutely right Ntate Phoofolo.
Let these judges wake up in early mornings to do some real work instead of staying in the warm cuddles of their wives or hubbies.