- after the ABC’s NEC recommended the move,
- NEC also wants Mahase sacked as acting chief justice
PRIME Minister Moeketsi Majoro has effectively fired Attorney General Haae Phoofolo. This after ordering him to go on “terminal leave” pending the expiry of his contract in February 2021. The leave is with effect from Monday 14 September 2020.
Authoritative government sources said Dr Majoro was pressured into ousting Advocate Phoofolo by the national executive committee (NEC) of the ruling All Basotho Convention (ABC). The ABC NEC has itself confirmed as such.
Adv Phoofolo confirmed his impending exit in an interview with the Lesotho Times yesterday.
“I am 73 years old and I have three adult children all of whom are married,” Adv Phoofolo said, adding, “The path that I am going to follow is to spend more time with my wife and grandchildren”. (See Big Interview on page 16).
However, the sources said the NEC demanded his and Acting Chief Justice ‘Maseforo Mahase’s sacking as punishment for clandestinely meeting and recommending the appointment of five new judges to the High Court bench. ABC secretary general Lebohang Hlaele yesterday confirmed that the NEC had discussed the “competencies” of Adv Phoofolo and Justice Mahase and recommended their ouster.
Mr Hlaele said the office of AG required a younger and more energetic person hence they had recommended that Dr Majoro appoints someone to replace Adv Phoofolo who he said was not in good health and “no longer fit to remain in office”.
He said they had also recommended that Justice Mahase should be removed from her current position and go back to being just a judge. He said Dr Majoro had agreed with them on Justice Mahase and all that was left was for the premier to remove her from the post of acting chief justice.
In his 14 September 2020 letter to Adv Phoofolo, Dr Majoro says it is necessary for the former to go on terminal leave ahead of his departure. This is to facilitate the search for his successor which must begin now ahead of the expiry of his contract in five months’ time.
“I refer to our conversation regarding my plans for the office of the Attorney General,” Dr Majoro states.
“In our meeting I expressed my desire, as prime minister, to start looking for your replacement early in order to align the office to the ambitions of this new government.
“I indicated to you that I anticipate considerably increased workloads to be generated by the rapid implementation of government policies as well as the ongoing reform process. I also shared with you my observation that the (AG’s) office would need to be reformed and that I need to direct this process as soon as possible.
“In view of the above, I write to direct you to proceed on terminal leave with immediate effect pending the end of your contract on February, 6 2021. All your contractual entitlements under the existing contract will not be tempered with until your contract has ended,” Dr Majoro states.
Although, he does not mention it, well-placed government sources said the real reason for Adv Phoofolo’s ouster was the ABC NEC’s anger that he and Justice Mahase sat on 20 August 2020 in their capacity as members of the Judicial Service Commission (JSC) and recommended the appointment of five new judges.
They did so without the knowledge and participation of Law and Justice Minister Professor Nqosa Mahao. Prof Mahao is also the deputy leader of the ABC.
The five recommended as judges are the Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha.
The recommendations torched a storm with Prof Mahao saying they were conducted in secret by Adv Phoofolo and Justice Mahase who did not even constitute the required quorum of JSC members. The JSC comprises of the chief justice, the attorney general, the chairperson of the Public Service Commission and a nominated judge.
Prof Mahao also argued that the appointment of substantive judges should be held in abeyance until after the implementation of the judicial reforms recommended by the Southern African Development Community (SADC) to ensure the best candidates are chosen in an open and transparent process.
King Letsie III subsequently rejected the recommendations on the grounds that Adv Phoofolo and Justice Mahase could not sit on their own and make recommendations on such a weighty matter without the input of other members of the JSC.
Although the recommendations were rejected by His Majesty, the ABC’s NEC was still unhappy with Adv Phoofolo and Justice Mahase.
However, Adv Phoofolo defended his and Justice Mahase’s conduct, saying the decision to appoint new judges “was one that had to be taken at some point because there is a dire need of judges”.
“I believe we need no less than 10 judges to put the High Court back in full swing. As we speak the Commercial Court is not manned by even a single judge. I just want to pose a question.
“If I had told the justice minister (Prof Mahao) in advance and immediately after the JSC meeting that we were going to deal with appointment of judges, what would he do about that knowledge,” asked Adv Phoofolo. The JSC has steadfastly insisted that it is not under any obligation to inform the government when it meets to recommend the appointment of judges.
This has however, not gone down well with the ABC’s NEC and cabinet ministers who insist that the JSC processes must be open and transparent.
According to party and government sources, the NEC met over the matter and demanded that Adv Phoofolo and Justice Mahase be fired by 8 September 2020.
The sources said the NEC strongly felt that the duo was pushing the agenda of former Prime Minister Thomas Thabane and therefore they must be fired.
The NEC has largely been pro-Mahao since its election in February 2019. Prof Mahao fought a year-long battle with ABC leader Mr Thabane for control of the party. Prof Mahao and the NEC eventually succeeded in forcing Mr Thabane to step down as premier and make way for Dr Majoro on 20 May 2020.
Dr Majoro, who is the party’s Thetsane constituency legislator, is not a member of the powerful NEC. The move to oust Adv Phoofolo is an example of some of the concessions he is sometimes forced into making to retain the ABC NEC’s support.
“Immediately after learning of what Phoofolo and ‘Maseforo had done, the NEC asked Majoro to sack the two,” a source said.
Another source said the NEC strongly believed that Justice Mahase and Adv Phoofolo were using their positions to frustrate the NEC-backed Majoro administration “to the advantage of Thabane and his allies”.
“The NEC gave Majoro until last Tuesday (8 September) to fire both Mahase and Phoofolo.
“The two hold very critical positions and they are working against the NEC and the government to the advantage of Thabane and his allies. We cannot have a situation where Thabane remotely runs this government. We will not allow that to happen,” the source said.
The source said when the government came to power in May, it had been initially agreed that Adv Phoofolo and Justice Mahase would continue in office until after the implementation of the judicial reforms, expected to include new laws governing the appointments of an AG and chief justice.
“Phoofolo was going to be allowed to occupy that office until the end of his contract next year. We knew he was untrustworthy but we wanted to give him the opportunity to prove us wrong. But he went behind Mahao’s back and connived with Mahase to appoint five new judges. They were fully aware of the government’s intention to only fill those positions after the reforms.
“You will remember that Mahao told the media that the government wanted to create a transparent environment for the appointment of judges and other heads of department like the chief justice and AG. Phoofolo was fully aware of that decision but he went ahead and connived with Mahase to recommend those appointments. He made his own bed and he must now sleep on it,” said the source.
Another source said the NEC felt that Adv Phoofolo had become a liability to the government as he was allegedly failing to discharge his mandate.
“He (Adv Phoofolo) had become incompetent. He was not delivering as expected. He would take weeks before submitting legal opinions whenever he was asked by his principals. We needed to get rid of him,” said the source.
Mr Hlaele confirmed that they had recommended the ouster of Adv Phoofolo and Justice Mahase.
“We discussed competency issues surrounding the AG. We had similar discussions around the ACJ (Mahase). Our recommendations (for their ouster) were based on competency only and nothing else. We don’t have a problem with their relationship with the former premier. This is about competency only.
“On top of that, the AG’s ill health has been troubling him lately and that office needs someone who is energetic and constantly doing research on different topics.
“The AG must be ready to work overtime because judgements are delivered day and night in many other countries. He should be someone who is on their feet and able to work under a lot of pressure so that he can competently advise the government,” Mr Hlaele said.
He said they felt that 73-year-old Adv Phoofolo was no longer up to the task.
“It is our feeling that he is no longer fit to be AG. Our recommendation to the prime minister was that the AG must be assisted to leave office ahead of the expiry of his contract next year.
“We are a caring government. I want you to underline those words, we are a caring government. We care for our employees, Basotho and all citizens and therefore we have to care for him (Phoofolo) as well.
“All we are saying is that he must be allowed to nurse himself back to good health ahead of his retirement.
“Secondly, ‘M’e Mahase is not a reading type. That position (of chief justice) needs to be filled with someone who reads a lot. Based on that, we are saying she must be removed from the position of ACJ to allow her to resume her substantive position of a judge. Do you think we have erred?
“We made our recommendations to the prime minister. He is the one that we discuss these issues with. We asked him to remove her (Mahase) and look for a fit candidate,” said Mr Hlaele. The ABC SG has a pending Constitutional Court application for the removal of Justice Mahase on the grounds that she is incompetent and therefore unfit to remain in office.
He, however, refused to say whether they had given Dr Majoro a deadline to act on their recommendations or to say what would happen if the recommendations were not implemented.
“Let me not comment on that. However, we made clear recommendations,” he said.
He nevertheless emphasized that the government must act urgently to address problems at the judiciary, even if it means appointing acting judges to deal with a huge case backlog.
“Whoever is appointed to act in those positions is really none of our business. But she (Mahase) must go back to her substantive position of being a judge.
“It is up to the government to decide whether to address the issue of poor service delivery by the judiciary or allow the courts to go to the dogs.
“Right now, the courts have collapsed. There are no judges and suspects are languishing in the correctional services. Suspects are always being remanded in custody because of the shortage of judges and magistrates. Government must do something now and in fact it must act like yesterday.
“What we do not want is for Basotho to suffer in the prisons because of poor service delivery. Some of these suspects are innocent but are denied justice because of the shortage of magistrates and judges. We want to see those positions filled,” said Mr Hlaele.
He said Dr Majoro had agreed with the ABC’s NEC on Justice Mahase and all that was left was for the premier to remove her from the post of acting chief justice.
It was not clear by the time of going to print last night whether or not the prime minister had acted on the NEC’s recommendation to oust Judge Mahase from her current role as acting chief justice.
Dr Majoro’s press attaché Mosito Moqhekoana had not responded to questions posted to him by the time of going to print.