Clash of the titans
… as Mahao fights Mahase, Phoofolo over judges’ appointments
Mohalenyane Phakela / Pascalinah Kabi
A NASTY fight has erupted between the government and the Judicial Service Commission (JSC) over the appointment of new judges.
On one side is Law and Justice Minister Professor Nqosa Mahao who accuses the Acting Chief Justice, ‘Maseforo Mahase, and Attorney General Haae Phoofolo of clandestinely recommending five people for appointment as judges without consulting him as the responsible minister.
Last Thursday, Justice Mahase and Advocate Phoofolo sat as the JSC and recommended five people for appointment as judges by King Letsie III. His Majesty is yet to act on the recommendations.
Prof Mahao and the judiciary have refused to disclose those shortlisted for appointment. However, the Lesotho Times is reliably informed that the Deputy Attorney General Tšebang Putsoane, High Court and Court of Appeal Registrar Adv ‘Mathato Sekoai, lawyers Tšabo Matooane, Mokhele Matsau and Moneuoa Kopo are those recommended by Justice Mahase and Adv Phoofolo for appointment.
A fire-spitting Prof Mahao this week said he was “shocked” that Justice Mahase and Adv Phoofolo had “breached all procedures” by nominating candidates without informing him and his government colleagues.
He also said that Justice Mahase and Adv Phoofolo did not constitute a quorum and they could not recommend any appointments without the knowledge and participation of other members of the JSC. He even warned that if need be, he would challenge the duo’s actions in court.
But the judiciary is having none of it and insists that Justice Mahase and Advocate Phoofolo acted within their rights to nominate the candidates
Adv Sekoai, who is also the secretary of the JSC, defended Justice Mahase and Adv Phoofolo, saying they formed a quorum when they met and made the recommendations.
She said she not aware that she a nominee herself.
Adv Sekoai also said the government had no business in the appointment of judges as that was the sole responsibility of the JSC as stipulated in the constitution.
The nominations are expected to help ease the shortage of judges as there are only eight of them after the recent deaths of Justices Lebohang Molete and Lisebo Chaka-Makhooane and the retirement of Justices Semapo Peete and Teboho Moiloa on 31 July 2020.
The few remaining judges are struggling to deal with the huge backlog of cases estimated at 4000 plus.
But Prof Mahao accused Justice Mahase and Adv Phoofolo of conducting the nomination in secrecy. He said their actions were contrary to the government’s stated commitment not to appoint any new judges until after the implementation of the judicial reforms. The judicial reforms are part of wider multi-sector reforms recommended by SADC to achieve lasting peace and stability in the country. It is envisaged that under the reforms, there will be a much more public and vigorous process of vetting any potential appointees to the bench as is done in South Africa.
“On Friday, at around 8pm or so, I received a voice clip appearing to be that of the Registrar of the High Court (Sekoai) where it seemed as though she was informing her colleagues of the appointment of new judges by the JSC and that the names had been dispatched to His Majesty the King,” Prof Mahao said at a press conference this week.
“The clip further indicates that it was expected that names of the new judges would be announced today (Monday). I was surprised by this issue because it was my first-time hearing about this matter as the responsible minister.
“I didn’t know that judges had been recommended for appointment. We are told that it was the acting chief justice (Mahase) and the AG (Phoofolo) who nominated the judges.
“I will not comment about the competencies of the AG but what I know is that he was supposed to have consulted me, the same way he has done in the past. Just before the JSC meetings, he would come to me and ask for the government’s mandate.
“Well this time it did not happen. He has not said anything to me up to now. I tried making few calls to him on Friday to establish the veracity of this matter and he did not return my calls. We were all taken by surprise; this is not how we are supposed to work. His office door is opposite mine but he has not said anything. We have met after their meeting (with Justice Mahase) yet he has not given me heads up.
“Things cannot be done this way. Even if the law permits, two people cannot sit and decide to appoint judges without the full JSC membership and without following all the procedural steps of distributing candidates’ profiles, studying them and making decisions. We must begin to take this country and the expectations of Basotho seriously. We need to do things procedurally and this is where our bone of contention is. Absent JSC members were the chairman of the Public Service Commission and one of the judges,” Prof Mahao said.
The JSC comprises of the chief justice, the attorney general, the chairperson of the Public Service Commission and a nominated judge.
Prof Mahao said before the JSC recommended new judicial appointments, it had to be restructured to have a wider representation of various stakeholders. He said the government had therefore decided that no judge would be appointed on a substantive basis until after the completion of the judicial reforms.
“I wish to take Basotho into my confidence and say that His Majesty’s government and the Ministry of Law and Justice have not made a decision on what needs to happen in the judiciary.
“You will remember that we are the fourth coalition government since 2014 which has been talking about reforms. All other coalition governments did not implement the reforms. It is our resolve that the reforms must be taken seriously and it starts with this government. If this government fails to de-politicise the judiciary, no government will ever will.
“It is our vision to ensure that the appointment of all judges is made in a transparent manner based on each candidate’s competencies and skills. This can only be a transparent exercise if judges’ vacancies are announced for all interested individuals to apply and go through rigorous screening processes of being interviewed by the JSC.
“We hope that the JSC would have been reformed by that time. It (JSC) needs to have a wider representation inclusive of all the relevant stakeholders. International JSCs are inclusive of law societies, law lecturers and other interested groups. All these issues will be incorporated in the new law to ensure that the JSC is accommodative of all sectors that will be agreed upon.”
Prof Mahao said his ministry tabled The Administration of the Judiciary Bill before cabinet Act a fortnight ago and once passed into law, the act would provide for the transparent appointment of judges by ensuring that “all candidates are screened and the recruitment process is de-politicised”.
Prof Mahao said for now only acting judges would be appointed to fill the void left by the deceased and retired judges. He said substantive appointments would only be made after the implementation of the judicial reforms.
Justice Mahase and Adv Phoofolo were not reachable on their mobile phones for comment.
However, Adv Sekoai hit back at Prof Mahao, saying Justice Mahase and Adv Phoofolo were well within their rights to nominate candidates for appointment as judges. She said the duo formed a JSC quorum.
She also said the since JSC was not creating new posts but filing the vacant ones, it was not required to inform the government before recommending anyone for appointment.
“According to the constitution, the nomination of judges is done solely by the JSC.
“Section 132(8) of the constitution states that the JSC shall not be subjected to any control or direction of any other person or authority. Section 132(10) states that the JSC may continue its business in the absence of other members. Rule 5 of the JSC rules states that two members form a quorum as long as they agree on the subject of the day.
“In the laws I have quoted above, none of them talk about the role of the government in the nomination of judges. I do not know of any law which gives the government the power to interfere with the appointment of judges.
“It should be clear that the nominated judges are intended to fill the already existing gaps of judges who have either passed away or retired recently. They would be entering into already existing portfolios. If we were hiring judges outside the already existing quota, then we would need to inform the government for it to allocate resources for them
“The JSC has not done anything wrong and it is currently awaiting the King’s approval and the appointment of the nominees. There were five names submitted to the King but I cannot say who they are until they are sworn in by His Majesty,” Adv Sekoai said.