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Courts in paralysis: Phoofolo

by Lesotho Times
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….AG calls for abolition of the office of President of the Court of Appeal

’Marafaele Mohloboli

Attorney General Haae Phoofolo says the country’s courts are in a state of paralysis because of the ongoing acrimony between the executive and the judiciary.

The administration of justice has as a result been severely jeopardised because “those who were supposed to be hearing cases were themselves involved in lawsuits”.

Advocate Phoofolo has also called for the abolition of the office of the President of the Court of Appeal.  He proposes the merger of that office into the office of the Chief Justice who should then head the entire judiciary.

The AG spoke amid the impasse between the executive and the judiciary which has seen Chief Justice Nthomeng Majara petitioning the courts to stop Prime Minister Thomas Thabane’s bid to impeach her from office.

The AG said the acrimony between the judiciary and the executive had put him in a difficult position as he had a constitutional mandate to work with both arms of the state to ensure the smooth administration of justice in the country.

Adv Phoofolo spoke in a wide-ranging exclusive interview with the Lesotho Times this week.

His comments come in the wake of Justice Majara’s recent court application to stop Dr Thabane from advising His Majesty King Letsie III to appoint a tribunal to recommend whether or not she should be fired over allegations of misconduct.

Dr Thabane wrote to Justice Majara on 27 April 2018, requesting that she ‘show cause’ why she should not be suspended and why a tribunal should not be appointed to consider impeaching her on various charges of misconduct including her alleged failure to preside over cases for two years.

However Justice Majara, who is represented by Advocate Qhalehang Letsika KC of Mei & Mei Attorneys, fought back by filing a court challenge against Dr Thabane last month.

Dr Thabane, Minister of Law Lebohang Hlaele and Attorney General Advocate Phoofolo, are cited as first to third respondents respectively in Justice Majara’s lawsuit.

Justice Majara petitioned the court to order that “the government under the supervision of the first respondent (Dr Thabane) has contravened the constitution by requiring and/or demanding the resignation of the applicant as Chief Justice of the Kingdom of Lesotho”.

In her supporting affidavit, Justice Majara said she had been left with no choice but to seek legal relief “after all my efforts to resolve this matter amicably proved futile”.

She suggested that Dr Thabane only penned the ‘show cause’ letter after his “unlawful” attempts to remove her from office through “coercion” had failed.

Reflecting on his time in the hot seat of AG since his appointment on 8 February 2018, Adv Phoofolo said that he faced a difficult time in providing legal advice to the executive and the judiciary especially as they continued to be at loggerheads with each other.

“The main function of the office of the Attorney-General is to provide legal advice to the government and that presupposes two main essentials, that is independence of the mind and objectivity,” Adv Phoofolo said.

“Now, the government that the attorney general should give legal advice consists of the executive, legislature and the judiciary. Providing legal advice to those three arms of the government is like steering one’s way through rough and stormy seas where the waves often force you out of your course if independence of the mind and objectivity are lacking.

“Every informed citizen now knows that there is tension between the judiciary and the executive. One can safely call this a power struggle where two bulls in a kraal try to establish or wield authority over each other.  As a consequence the grass is now suffering.

“The apex court is not functioning.  The High Court is busy with lawsuits involving people who should be resolving the lawsuits brought to it by the public.

“In all this mess each bull cites the constitution as its weapon in the fight against the other.  Everyone can see what a challenge this is to the office of the Attorney General in trying to keep its position as independent and objective as possible in helping both sides to come with a solution that is beneficial to the country and not necessarily to the satisfaction of the feuding individuals.”

Some judicial officers have said that the backlog of cases is as high as 4000 and given the snail’s pace with which the judiciary has approached the issue, some cases might only be heard after several years.

Adv Phoofolo refused to disclose how many cases were outstanding, saying this was one of the issues that the Chief Justice could be charged with in the event that the impeachment went ahead as planned by Dr Thabane.

“I will refrain from commenting on the matter of the backlogs of cases because this is one of the accusations levelled against the Honourable Chief Justice in the impeachment trial she may face in the future.

“It is sufficient to say that there are many untried cases. The situation has become so bad that people are now suing judicial offices for delaying to deliver judgments in their cases.  As far as criminal matters are concerned we might soon get applications for the release or permanent stay of proceedings of those matters.

“This situation is not good for our country  and  it puts us in negative light in the face of the international community, mostly our development partners.   It places our human rights record in a bad light.  The whole thing has gone on for so long that it has become a norm rather than an exception in Lesotho.

“I cannot remember a single day during my time as a legal practitioner in the South African Courts when there was an empty court from 9am till late afternoon.  But in Lesotho you will see an empty one every day.  Either a judicial officer is not there or the prosecutor or lawyer.

“I have also heard that the High Court will soon be going on a winter vacation. I never heard of that in South Africa. What really necessitates such a thing in Lesotho, I really don’t know.”

Turning to the subject of judicial reforms, which are part of an envisaged rafter of multi sector reforms to achieve durable peace and stability in Lesotho, Adv Phoofolo, said it was only necessary to “update” certain issues within the judiciary rather than institute large-scale reforms since “Lesotho was not emerging from the Stone Age into civilisation”.

“The practice of having a Chief Justice and President of the Court of Appeal should be abolished.  There should be only one head of the judiciary who should be the Chief Justice under whom all courts and tribunals should fall.

“Another area that needs updating is the Judicial Service Commission (JSC) whose membership is composed of the Chief Justice as the chair, a judge of the High Court, the Attorney General and the chairperson of the Public Service Commission.

“There are only four people in the JSC and the funniest thing is that it only takes two people to make the quorum.  The constitution must be amended with regards to the JSC to increase its membership so that it becomes representative of a larger sector of stakeholders such as lawyers and others,” Adv Phoofolo said.

His remarks also come in the wake of the admission by Prime Minister Thabane that the judiciary in the country needed reform to effectively administer justice.

“There is a serious need to restore the proper management of the High Court because we have realized that there is huge interruption in the administration of justice…There is a serious lack of leadership under the watch of the current chief justice and that is why we are negotiating her exit…We have to find a chief justice who will make sure that offenders appear before the courts of law without any limitations,” said Dr Thabane in an interview with the Lesotho Times last week to mark his one year in power.

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