…but govt will not stand in the way if the JSC wants them….
Kaleen Chikowore
LAW and Justice Minister Lekhetho Rakuoane says the government has no part to play in the renewal of the contract of Judge Charles Hungwe’s contract which expires on 28 February 2022.
It is up to the Judicial Service Commission (JSC) to renew the Zimbabwean judge’s contract and to recruit another foreign judge, Advocate Rakuoane said in an interview this week.
The minister also said he was not in favour of the recruitment of foreign judges because local judges were just as capable of trying high-profile criminal cases involving politicians, serving and former members of the security agencies.
Despite his opposition to foreign judges and prosecutors like South African Shaun Abrahams, their engagement by the JSC was an “accomplished fact” which he found in place when he was appointed to his current portfolio in April 2021, Adv Rakuoane said.
Therefore, the government would not interfere with their work and it will continue giving them its full backing, he added.
His comments come against the background of the imminent expiry of Justice Hungwe’s contract on 28 February 2022.
Justice Hungwe was recruited in 2019 by the government and the JSC. His salary is paid by the European Union (EU). EU ambassador to Lesotho, Paola Amadei, recently told the Lesotho Times that the regional bloc was prepared to continue funding his salary “for as long as it takes for him to finalise his cases”. These include former army commander Tlali Kamoli and his fellow rogue soldiers’ trial for the June 2015 murder of army commander, Maaparankoe Mahao.
Ambassador Amadei said the EU was even prepared to fund the recruitment of another foreign judge but everything depended on whether or not the Lesotho government approached them for such support.
But with less than two weeks to go before the expiry of Justice Hungwe’s contract, it is not clear whether or not the JSC is committed to renewing the judge’s contract. Nor is it clear if it is willing to recruit another foreign judge to help deal with the slow-moving trials.
JSC secretary ‘Mathato Sekoai has been unwilling to speak on the matter, saying she will only discuss the matter when she has been authorised to do so by the JSC.
When asked about the issue recently, Ambassador Amadei said, “the EU has been supporting the judiciary in relation to the high-profile trials first via SADC and now through the UNDP that is managing the programme”.
“Our involvement was based on a request by the government of Lesotho. We didn’t just impose ourselves. The support was necessitated by the Lesotho government’s desire to ensure a transparent process. The government felt there may be pressure on the local judges. The government wanted to ensure that there wouldn’t be any suspicions of bias either in favour of the suspects or against them. So, for that reason, international judges were recruited. Currently, only one of the international judges, Charles Hungwe, is still in place. But we are willing to support the recruitment of another international judge.
“Our support will always be available depending on whether the government needs it. We are prepared to continue assisting for as long as it takes to finalise the high-profile trials,” Ambassador Amadei added.
When her comments were put to Minister Rakuoane this week, he said, “it is not for me to decide. It is up to the JSC to decide whether or not to renew Justice Hungwe’s contract. If they decide to renew his contract and recruit another foreign judge, we will support them. As a government we will not interfere with the judiciary”.
Justice Hungwe’s contract was only renewed in November 2021. This after it had expired on 31 October 2021.
Although it was clear that he would not have finalised the cases before him by then, Justice Hungwe’s contract was only extended until 28 February 2022.
Justice Hungwe was engaged by the government and JSC in January 2019 to try the high-profile trials involving politicians and members of the national security agencies.
At the time, then Justice and Correctional Services Minister, Mokhele Moletsane, said although local judges were competent enough to try the cases, the government and SADC felt it necessary to engage foreign judges because the cases in question were politically sensitive. He said the verdicts of the foreign judges were less likely to be viewed as biased.
With the help of SADC, the government eventually secured the services of Justice Hungwe who was later joined in August 2019 by two Botswana judges Kabelo Lebotse and Onkemetse Tshosa.
However, Justices Lebotse and Tshosa resigned in May 2020 and August 2021 respectively, complaining of poor working conditions, among other things. They were also unhappy about the delaying tactics deployed by the suspects to stall the trials.
Their resignations left Justice Hungwe with the gargantuan task of presiding over some of the high-profile trials by himself. Some of the cases, including the treason and murder trial of politicians, Mothetjoa Metsing and Selibe Mochoboroane, Lt-Gen Kamoli and others, have since been allocated to local judges including Justice Sakoane.
Unlike the previous Thomas Thabane-led government which favoured the recruitment of foreign judges, Adv Rakuoane said he did not support the idea because local judges were just as competent to try any cases. In any event, hiring foreign judges is more expensive and the government would be struggling to pay them without the EU’s support, he said.
“Within government, we are divided over the issue (recruitment of foreign judges). There are people who strongly feel that we should have foreign judges and even foreign prosecutors. However, that’s expensive for the government and we can’t afford it. We are only lucky that we still have support of the EU and the UNDP to pay them.
“There are some suspects who view the foreign judges as mercenaries who will not deliver justice. So, the country is divided. With our coming into government together with the Democratic Congress (DC), I think even the government is now divided because we don’t believe in that school of thought of hiring foreign judges.
“It has been said that we are opposed to the foreign judges because we are implicated in some of the cases. But that is not the case. It is just our view (not to recruit foreign judges) but we will not stand in the way of the JSC which is behind their recruitment. This is something we found when we got into government and we will not therefore interfere,” Adv Rakuoane said.
He said it was unfortunate that some people had falsely accused them of seeking to obstruct the high-profile trials when the reality was that some of their partners in government were the ones who had a history of “naked interference” in the affairs of the judiciary.
“The very people who are pointing out our supposed flaws are the same who interfered in the affairs of the judiciary in the past. For instance, remember my predecessor, Lebohang Hlaele would go and make a toyi toyi (protest march) against the Chief Justice (Nthomeng Majara).
“Even the manner in which the Court of Appeal president Judge Mosito was re-appointed smacked of naked interference in the affairs of the judiciary. There was already a judge (Robert Nugent) in place as the court’s president. This was done by the people who claim to be adherents of the rule of law. What they did leaves a lot to be desired but it is all in the past. Let us work with what we have right now,” Adv Rakuoane said.
His comments were in reference to Justice Mosito’s re-appointment by then Prime Minister Thabane on 1 August 2017.
Justice Mosito was re-appointed eight months after he was forced to resign to avoid impeachment over tax evasion allegations by the Pakalitha Mosisili-led former government.
Shortly after his re-appointment, four prominent lawyers filed a Constitutional Court application challenging the validity of his appointment.
The four, Qhalehang Letsika, Karabo Mohau, Motiea Teele and Zwelakhe Mda, argued that Mr Thabane did not follow due process when he advised His Majesty, King Letsie III to re-appoint Justice Mosito.
They also contended that the removal of his predecessor, Justice Nugent, to accommodate Justice Mosito was illegal.
Their application was dismissed in October 2018 on the grounds that Justice Mosito had been validly re-appointed.
Adv Rakuoane’s comments were also directed at current All Basotho Convention (ABC) secretary general Hlaele. Back in December 2017 when Mr Hlaele was Minister of Law and Constitutional Affairs, he attacked Chief Justice Majara when he addressed scores of Basotho who had staged a protest march to demand the swearing-in of Justice Mosito as Court of Appeal president.
Addressing the protestors, Mr Hlaele took a swipe at Chief Justice Majara saying she had to either resign or face an impeachment tribunal for corruption over a controversial M27 000 per month rental deal. She was accused of renting a house from fellow judge, Teboho Moiloa, at way more than the M4000 housing allowance that she was entitled to.
“The only advice that I have for her is to go,” Mr Hlaele said.
“She should resign. Otherwise, she will be put before a tribunal to face harsh punishment for stealing people’s money. It is a punishment befitting her actions because she has called it upon herself.”
Mr Hlaele’s statements did not go down well with lawyers, Teele, Mda, Mohau and Letsika who subsequently wrote to the Law Society, saying that, “it was unprecedented, in this country, for a minister to single out a judge for such a virulent attack”.
Justice Majara eventually agreed to go in 2019 after getting an M9 million handshake from the then Thabane administration.
