Big Interview

Political instability affecting judiciary, economy: Phoofolo

ADVOCATE Haae Phoofolo King’s Counsel was appointed Attorney General (AG) on 8 February 2018. His office is the first defender of the Constitution in terms of Section 98 of Constitution of Lesotho. Lesotho Times (LT) reporter, Mohalenyane Phakela, caught up with Adv Phoofolo KC to learn about the strides that his office has made in his post. In the interview, the AG does not mince words on how direly the judiciary needs capacitation for both lawyers and judges.

LT: It is almost two years since you assumed the post of AG. What have been the major highlights so far? What would you list as your major achievements and major failures in terms of the prosecution of cases and the administration of justice in general?

Adv Phoofolo KC: I was appointed with the advent of the third coalition government and some of the major highlights which came with my appointment were those of the facilitation of the reforms agenda and participating with major stakeholders and transnational organisations.

This appointment further came with many wounds which were occasioned by the series of political disturbances that plagued the country since the emergence of coalition governments. The consequent removal of two presidents of The Court of Appeal and reinstatement of one. The suspension of the Chief Justice and many challenges which had to do with the prosecution of criminal cases emanating from the political instability that plagued the country and its ripple effect on the administration of justice as a whole.

We also come from a sordid phase where the Court of Appeal was dysfunctional for a continued period of two years. I have witnessed many challenges these past two years facing not just the office of the AG but the administration of justice. It would be greatly uncalled for if I were to state that I as an individual have achieved anything because that would be an indication of my being self-absorbed.

The challenges were met by the office as part of the institutional framework of the administration of justice and if ever there are any successes, they are to be attributed to the office as a body of individuals who endure the collective burden and should equally endure the credit. We have been able to swim through the tide as professionals and I must confess that I have since learnt that running the state apparatus in such circumstances is not a walk in the park.

LT: Which are some of the high-profile cases that have been successfully prosecuted?

 Adv Phoofolo KC: I am not administratively in charge of prosecution but the Director of Public Prosecutions (DPP) is. It is Important that my duties are distinguished from those of my counterpart — the DPP — who enjoys functional autonomy in the discharge of her duties of prosecuting and I do not have any statistical data but like I said, the delays in the prosecutions had to do to a certain extent with the unstable status of the judiciary and the limited resources — we have limited judges who are overly burdened. Some of these cases were delayed because of litigations which were aimed at challenging the presiding judges’ competence to hear the matters.

LT: There are the high-profile cases featuring former and serving members of the security agencies including murder-accused former army commander Tlali Kamoli. How ready are you to prosecute these cases? What value will the likes of Prime Minister Thomas Thabane, former premier Pakalitha Mosisili, Police Commissioner Holomo Molibeli and army commander Mojalefa Letsoela bring to the state case as witnesses in the Mahao murder trial?

Adv Phoofolo KC: Beyond the fact that I have already illustrated that I am not better placed to deal with this question as I am not in the office of the DPP, it is clearly legally reprehensible to discuss the details and modalities of a case which is pending before a court of law.

It is even worse if it is a criminal trial. It borders on contempt of court and I am more than happy to avoid responding to this question.

LT: Many people have interpreted Lt-Gen Kamoli and others’ move to fight against the appointment of foreign judges as a simple tactic meant to delay their trials in the hope that the government will collapse and then the incoming regime will drop the charges against them. What is your view regarding the allegations?

 Adv Phoofolo KC: To suggest that when a citizen who is charged of a crime employs ‘tactics’ to delay a trial would be highly speculative and conjectural of me. When we talk of sensitive issues of this nature and an accused person of the calibre of the former army commander, we have to avoid sensationalism and melodrama.

But above all, we must avoid value judgements especially as agents of the state. I have heard a lot of talk of this nature from the media and I believe that it is nothing but ‘value judgement’.

LT: Several lawyers, including the Law Society of Lesotho, have lamented the alleged improper conduct of Acting Chief Justice, ‘Maseforo Mahase, particularly in cases to do with the infighting in the ruling party, All Basotho Convention (ABC). What is your opinion on the Acting Chief Justice?

Adv Phoofolo KC: I am a state functionary and the learned Acting Chief Justice is equally a state functionary. I am mandated with the duty to render legal advice to the government in all civil suits which means that if it is to be staged against her, I am the first to render professional advice.

To expect me to comment on the conduct of a state functionary would lead to the potential of me being conflicted if not being unprofessional. I am going to be very circumspect to answer this question too mainly because I cannot be expected to make value judgements on this issue and also for professional reasons.

LT: Many have also said that Justice Mahase should recuse herself given the perceptions of her alleged biasness. Do you think she should recuse herself?

 Adv Phoofolo KC: There is an ongoing case in which the very question which you have posed shall be sought to be answered in a court platform. Let us await the judgement to avoid potential of being contemptuous.

LT: There seems to be a power struggle between Justice Mahase and Court of Appeal President, Kananelo Mosito. What does that mean for the state of the judiciary?

 Adv Phoofolo KC: I think for once; I must put this issue to bed by trying to contextualise the issue that has to do with perception. The challenge that must be addressed has to do with the institutional framework instead of consistently speaking of personalities.

There are so many reports and recommendations which have been made by transnational organisations and legal experts to the effect that the office of the Chief Justice must be at the apex of the judicial administration. Very little or no effect was done in the past until 2012 when the then president of the Court of Appeal and the then Chief Justice began to publicly express their differences.

The situation recurring yet again calls for urgent intervention. With this, I am just illustrating that at the root of these apparent differences and views lies the fact that the office of the Chief Justice and that of the Court of Appeal president are institutionally structured in a skewed manner.

The issue of personalities is only incidental. To suggest that there is a power struggle would be false and inaccurate description of the situation. It makes for interesting news headlines but does not regrettably address the root cause of the challenge.

LT: What can the office of the AG do to protect the image of the judiciary?

 ADV Phoofolo KC: The question is very interesting, mainly because it is styled as a question when it is a statement. It aims to suggest that the office of the AG is obligated to protect the image of the judiciary and seeks to probe me whether I have discharged that duty.

That effectively means it is not a fair question in effect. The office of the AG is part of the broad institutional framework of the administration of justice and in my humble view, the question properly put should be: what are all the organs and institutions of government which are established for the administration of justice doing to protect the image of the judiciary?

The question would include the following: law enforcement agencies, the prosecution, the magistrates and judges themselves; the legal profession; the executive and legislature. All these institutions have a role to play in the protection of the image of the judiciary and I would be in a position to tell you all about their roles in moulding the wheels of justice but must express my view that it is both wrong and inaccurate for anyone to suggest ‘only’ the office of the AG is bound to protect the image of the judiciary.

All these institutions either singularly or collectively bear the obligation to protect the image of the judiciary.  The image of the judiciary has been protected via the instrumental roles of law officers who work at the Law Office and who are under my administrative supervision. They have defended the government in various law suits and they continue to do so even to date and they also author legal opinions and recommendations accordingly and this is not to mention various recommendations on issues of legal policy inclusive of proposed reforms to the judicial sector aimed at empowering the judiciary.

LT: What do you think is the impact of the government’s instability on the judiciary?

 Adv Phoofolo KC: I have clearly indicated that the instability of government clearly has a bearing on the administration of justice and resultantly on the economy. No investor is prepared to invest in an unstable environment where his commercial interests are not sufficiently catered for. We, as a nation, must start investing in the judicial sector.

We need no less than 20 judges and need to capacitate magistrates and local court presidents to be sufficiently resourced and well equipped to deal with the challenges in this dynamic global environment. We also need vibrant young lawyers to mould our jurisprudence.

LT: Finally, we are aware that work was done to comprehensive dossier produced for your office and the government’s consideration of the 2014 treason case. Why has the matter not been brought to court or even the suspects being arrested?

 Adv Phoofolo KC: I am not at liberty to discuss such cases as I would be encroaching on the office of the DPP.

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