Mohalenyane Phakela | Nat Molomo
THE Court of Appeal President, Justice Kananelo Mosito, has spoken out against the recent controversial cancellation of the April 2019 session of the apex court, saying it was the work of “self-serving and unpatriotic individuals and bureaucrats” who sought to stifle the court.
The renowned judge also took the opportunity to call on the Acting Chief Justice, ‘Maseforo Mahase, to urgently convene a meeting of the judiciary to gather views on the proposed reforms of the judiciary and legal profession in line with the 2016 Southern African Development Commission (SADC) recommendations for the implementation of multi-sector reforms in Lesotho.
The Court of Appeal controversially failed to open for its April session in a development which only served to exacerbate an already untenable situation of the huge backlog of cases that needed to be heard. The backlog has its genesis in among other things, the long delay in opening the court due to the legal battles over who should be its president. The court failed to function for almost two years until late last year when Justice Mosito finally won his case to be sworn-in as president.
And just when it appeared sanity had been restored the apex court failed to open for its April session on the 15th of last month with the Acting High Court Registrar, Pontšo Phafoli, the Public Relations Officer of the Judiciary, ’Mabohlokoa Mapikitla and the Assistant Court of Appeal Registrar, Mosito Rabotsoa, all telling the nation that this was due to the lack of funds of funds.
Barely a week later, the Minister of Justice and Correctional Services, Mokhele Moletsane, refuted the trio’s claims that the apex court had been suspended due to lack of funds. Mr Moletsane said he was “shocked” by the suspension of the apex court, adding that Ms Phafoli and others had announced the suspension without his knowledge.
Although he did not know why it was suspended, Mr Moletsane said there was no way this could have been due to lack of funds as the judiciary had been awarded the full M97, 7 million that it requested from the national budget to fund its operations.
As the controversy raged on, the Law Society resolved to suspend all legal representation of their clients until the apex court was re-opened. Irate supporters of the ruling All Basotho Convention took the unprecedented step of ganging up with their rivals from the opposition Democratic Congress and the Lesotho Congress for Democracy (LCD) and staged a protest march to demand the ouster of Justice Mahase for failing to ensure the apex court was reconvened.
The Court of Appeal was finally opened on Monday and the current session will run from 13 May to 31 June 2019.
On the opening day of the Court of Appeal session, Justice Mosito took the opportunity to speak on its unexpected closure in April.
“There are a myriad reasons for the failure of the April session (of the apex court) and I need to mention that the blame cannot be placed on the door of the administration of the court, but elsewhere in government,” Justice Mosito said.
“There were clearly some unfortunate self-serving unpatriotic attempts by some individuals and bureaucrats aimed at stifling the functioning of this court. This emerged in the form of some alleged lack of funds for the holding of the court session, notwithstanding that the parliament had just passed the budget for the financial year 2019/2020. Who could be so naïve as not to see what is happening?
“We must however, unreservedly express our appreciation at the protesting stance taken by the leadership and membership of the Law Society of Lesotho against the aforementioned unfortunate egotistic and unpatriotic attempts aimed at stifling the functioning of the courts.”
The Court of Appeal bench comprises of justices Mosito and three foreign judges, Philip Musonda, Petrus Damaseb and Moses Chinhengo.
Justice Mosito also called Justice Mahase to urgently convene a meeting of the judiciary to gather views on the proposed reforms of the judiciary and legal profession in line with SADC’s 2016 recommendations for the implementation of multi-sector reforms in Lesotho.
In 2016, SADC recommended that Lesotho implements constitutional, security sector, governance, media and judicial reforms as part of efforts to achieve lasting peace and stability in the country.
It was against that background that in May 2017, the now ssuspended Chief Justice Nthomeng Majara appointed the Judicial Reforms Committee (JRC) which comprised of Justices Semapo Peete, Teboho Moiloa and the recently deceased ‘Maseshophe Hlajoane.
A JRC document obtained by the Lesotho Times showed that the committee subsequently recommended the abolishment of the prime minister’s powers to appoint judges and to impeach the chief justice.
The JRC also wants to ensure the unchallenged supremacy of the chief justice as the head of the judiciary by abolishing the Court of Appeal and replacing it with a Supreme Court headed by the chief justice.
Currently the Court of Appeal is the apex court and its presidents are regularly seen as competing for supremacy with the chief justice who sits in the High Court. The president of the Court of Appeal can review and set aside judgements from the High Court including those of the chief justice.
The JRC document states that “Lesotho is a democratic country and all major judicial appointments …should be shielded from the influence of party politics in order that the legitimate authority (of the judiciary) and the confidence of people should be maintained”.
“The active role of the executive in the appointment and impeachment of process calls for a drastic overhaul in order to strengthen and ensure judicial independence, that is, the security of (judges’) tenure and the meaningful separation of powers. This is essential in a vibrant democracy and for the rule of law.”
And on Monday, Justice Mosito called for further dialogue which would include the apex court’s contingent of foreign judges on the proposed judicial reforms.
“This is the time when Lesotho is engaged in constitutional and judicial reforms. It is my suggestion and fervent hope that the Acting Chief Justice will find an occasion to convene a brief joint sitting with the justices of this court to share views on the judicial reforms. These (foreign judges of the apex court) are very experienced professionals in this area as they have partaken on this exercise in their own countries and elsewhere.
“I would also like to suggest that a joint meeting of the judiciary and the legal profession be organised soonest to share our views on the contemplated judicial and legal reforms as we have to come up with a legitimate position of this issue. The efficiency of the judiciary depends on the calibre of judges, their philosophies, their judicial styles, their integrity as well as their efficient and honest administration of justice which is critical to the adherence to constitutionality and good governance.
“The judiciary is then only arm of the state that can nullify an act by the executive and the legislature on the grounds of unconstitutionality. The pivotal role of the judiciary calls for a close study of the institution in our context, its judicial process and the entire machinery of justice to ensure that law in the country is respected. Let justice be done even if heavens were to fall,” Justice Mosito said.
