… BNP leader says Sakoane should have recused himself
Bongiwe Zihlangu
BASOTHO National Party (BNP) leader, Machesetsa Mofomobe, has claimed that Chief Justice Sakoane Sakoane and other local judges were “interested parties” who should not have presided over a constitutional application to nullify the recall of parliament through a state of emergency. The application also sought to nullify all the constitutional amendments after it had been recalled.
Justices Sakoane, Tšeliso Monapathi and ‘Mafelile Ralebese this week granted lawyer, Lintle Tuke and journalist-cum-activitist Kananelo Boloetse’s application for the nullification of last month’s declaration of a state emergency by King Letsie III. The declaration had paved the way for the recall of the recently dissolved 10th parliament to pass a raft of constitutional amendments and others laws as envisaged in the national reforms process.
The court bench also nullified the amendments which had been gazetted on 31 August by the King as the Tenth Amendment to the Constitution Act, 2022. Handing down the judgement, Justice Sakoane described Adv Tuke and Mr Boloetse’s application as “a victory for constitutionalism and the rule of law”.
However, Mr Mofomobe believes there is more to the verdict than simply protecting the rule of law. In an interview this week, the Small Business Development, Cooperatives and Marketing minister described the judgement as “self-serving”. He said Justice Sakoane and the rest of the judiciary had one eye on protecting their own interests as the amendments passed by parliament ultimately entailed judicial reforms.
Had it, the Act would have created a new Supreme Court of Appeal and reformed High Court. As a result of these changes, Justice Sakoane’s current post would have had to be advertised while that of president of the Court of Appeal would have been abolished.
Therefore Justice Sakoane and his colleagues should have recused themselves from the constitutional application, Mr Mofomobe said. He also called on Court of Appeal president, Kananelo Mosito, to recuse himself now that the government had indicated that it would appeal against the Constitutional Court verdict.
“I suspect that Chief Justice (Chief Justice Sakoane) made a judgment of this nature to protect himself,” Mr Mofomobe said.
“I say this because under sections 120 and 124 of the (nullified) amended constitution, two new courts of law would have been established, namely the Supreme Court of Appeal to replace the Court of Appeal and a reformed High Court which would no longer be headed by the chief justice but a judge president.
“Under this arrangement, the current chief justice would have had to reapply for the post along with other hopefuls for the top job in the envisaged Supreme Court of Appeal. One might assume that because the chief justice had a vested interest in the outcome of this case, he supported a return to the status quo because it allows him to keep his job. I’m therefore of the view that he should have recused himself instead of presiding over a case whose outcome he had a vested interest.
“Similarly, the president of the Court of Appeal should recuse himself now that the government will be appealing the Constitutional Court judgment. In terms of the (nullified) amendments, the Court of Appeal would have made way for the Supreme Court of Appeal. Therefore, I would advise the president of the Court of Appeal not to preside over the appeal because it affects him directly. His job is on the line. If he presides over the appeal, he will be compromising himself,” Mr Mofomobe said.
He said by striking down all laws passed by the recalled parliament, the Constitutional Court judgment had nullified reforms aimed at dealing with several issues including the widely condemned endemic culture of floor-crossing by legislators whenever it suited their interests.
Due to the court verdict, Mr Mofomobe said Lesotho risked post-election instability emanating from defections in parliament as MPs cross the floor from one party to another.
He said although court decisions had to be respected, he was however disillusioned with the latest Constitutional Court judgement on the importance of the rule of law is public knowledge.
“I’m disillusioned by the nullification of the Electoral Amendment Act, 2022. This Act would have addressed the problem of rampant floor-crossing in parliament which many Basotho have complained about over the years. Now that the Act has been nullified, MPs will continue doing as they please, crossing over to other parties immediately after elections and betraying those who elected them. I foresee post-election instability (as a result of the court judgement).
“The court also nullified amendments which would have made it compulsory for proportional representation (PR) seats to be allocated on the basis of an individual’s performance in the polls. The amendment came as a result of widespread complaints that party leaders and their executive committees compiled PR lists and allocated them to their favourites instead of the best-placed losers in the elections. The best loser model has collapsed with this judgement. It is gone,” Mr Mofomobe said.
He also expressed his disappointment at the nullification of amendments to make Xhosa and Sephuthi national languages alongside Sotho and English.
He said he was further disappointed that the court had also nullified the Harmonization of the Rights of Customary Widows with the Legal Capacity of Married Persons Act, 2022. This act would have given women married under customary law the same rights as their counterparts married under civil law.
“I’m extremely disappointed with the judgement because some of the nullified laws would have gone a long way towards restoring peace and stability in the country. The nullification of provisions to make Xhosa and Sephuthi national languages means the rights of the Xhosa and Phuthi have been trampled on.
“As far as the BNP is concerned, ordinary Basotho are the losers due to this judgement. The politicians have won. They have prevailed over the public,” Mr Mofomobe said.
