Judge Monapathi speaks

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  • slams executive interference in judiciary
  • demands abolishment of the PM’s powers to appoint judges
  • says impeachments bids against Ramodibedi, Mosito and Majara all political

Mohalenyane Phakela

SENIOR High Court judge and former acting chief justice, Tšeliso Monapathi, has criticised politicians for undermining the independence of the judiciary for their own selfish political ends.

Impeachment efforts against different judges by different Prime Ministers in recent years best exemplified the quest by politicians to muzzle judges, Justice Monapathi said.

Former court of appeal president, the late Michael Ramodibedi, his successor Kananelo Mosito, as well as chief justice Nthomeng Majara have all endured impeachment efforts by former Prime Minister Pakalitha Mosisili and current premier Thomas Thabane. And Justice Monapathi attributes these impeachment drives to the politicians’ desire to create a pliable judiciary to ensure they get favourable judgements in the cases they bring before the courts.

He said the judiciary will never know peace as long as prime ministers maintained a role in the appointment and removal of judges from the bench.

Justice Monapathi is the presiding judge in a case in which All Basotho Convention (ABC) deputy leader, Professor Nqosa Mahao, and four other top party officials are challenging their 17 June 2019 “expulsions” from the party by Dr Thabane.

He admitted that he and fellow judges felt the pressure of handling the high profile case saying, whichever way they decided, there would always be an outcry and accusations of bias from the losers.

“A sensitive job like this one is not enjoyable because we live in a small country where we associate with almost everyone and society is always quick to judge,” Justice Monapathi said in an exclusive interview with the Lesotho Times this week.

“If people see me joking with any politician, they accuse me of siding with his party. For instance, I am currently seized with the ABC case and the judgement I will give will be followed by comments insinuating that I support whichever side the judgement will favour….Yet that is not the case”

The 71 year-old judge is the oldest and longest serving with 25 years of service under his belt. He said when he joined the bench in 1994, the judiciary enjoyed far greater independence with little, if any, interference from politicians than today. He said the independence of the judiciary had however been progressively undermined by politicians.

The judge cited the impeachment bids against top judges – Ramodibedi, Mosito and Majara – as the best examples of the politicians’ attempts to control judges.

The late Justice Ramodibedi endured impeachment efforts from then and current Prime Minister Thomas Thabane in 2013. He resigned in April 2014 to pre-empt the impeachment effort. This after he had lost his court bid to stave off the impeachment. Justice Ramodibedi had faced an array of charges including insurance fraud after he was accused of concocting a story that his driver had bashed one of his vehicles in an accident yet it was actually his son who had been illegally driving the official car at the time of the accident.

Justice Mosito, the current apex court boss, faced impeachment efforts from then Prime Minister Pakalitha Mosisili in 2016 for alleged tax evasion and resigned in December of that year to pre-empt the impeachment bid.  A tribunal set up to probe him had recommended that he be fired. The Mosisili government proceeded to “fire” him notwithstanding his resignation.  He was eventually cleared of the charges by the High Court and subsequently re-appointed by Dr Thabane in 2017.  The Court of Appeal led by Zambian judge Philip Musonda upheld his appointment.       Dr Thabane has, however, begun processes to impeach him again for alleged gross misconduct in connection with his handling of ABC cases and his continued employment at the National University of Lesotho (NUL). The premier now considers Judge Mosito’s job at NUL a hindrance to the effective discharge of his judicial duties.  But he was well aware of that job situation when he re-hired Judge Mosito after returning to power in 2017.   The latest impeachment bid is now being challenged by the Law Society of Lesotho, which considers it a blatant attack on the independence of the judiciary.

Justice Majara was appointed chief justice in September 2014 during the first government of Dr Thabane.  She was later suspended by Dr Thabane in September 2018, pending efforts to impeach her, after the premier’s second return to power. Judge Majara was suspended for alleged gross incompetence, misconduct and dereliction of duty. She is said to be on her way out of the bench after agreeing an exit package with the government.

However, Justice Monapathi insists the real reasons for all these impeachment efforts have nothing to do with incompetence or misconduct but the politicians’ desire to have a pliable judiciary to rule in their favour as more and more political disputes are brought to the courts.

He said the constitution was clear that the chief justice was the head of the judiciary but the behaviour of the politicians suggested otherwise as they strove   to control the judiciary.

Judge Monapathi also called for a clear hierarchy in the judiciary with the Supreme Court headed by a chief justice being the apex court followed by the High Court led by a judge president.

“The influence of politicians was next to non-existent when I joined the judiciary….,” said the judge.  But their influence had become pervasive as they sought to fight their political battles in the courts instead of the political arena.  As a result, the politicians were creating more problems than solutions.

The impeachment bids against Justices Ramodibedi, Mosito and Majara, had clearly exposed the drive by politicians to try and muzzle the judiciary.

“The judiciary will never know peace as long as the executive still has powers to appoint and topple judges….” declared Judge Monapathi.

Appointments and removals of judges should be a sole preserve of the Judicial Service Commission (JSC), he said.   The recruitment of judges should be done through a transparent public process in which posts are advertised and aspirant candidates are given the chance to respond.  Institutional independence of the judiciary can never be fostered in a process which allowed politicians to appoint and remove judges.

Justice Monapathi’s stance on abolishing the prime minister’s powers to appoint and impeach judges, including the chief justice, is in sync with the recommendations of the Judicial Reforms Committee (JRC) appointed by Justice Majara before her 2018 suspension by Dr Thabane.

The JRC had pushed for the unchallenged supremacy of the chief justice as the head of the judiciary. This through the abolishment of the Court of Appeal and its replacement with a Supreme Court headed by the chief justice.

Currently the Court of Appeal is the apex court and its presidents are regularly seen as competing for supremacy with the chief justice who sits in the High Court. The president of the Court of Appeal can review and set aside judgments from the High Court including those of the chief justice.

In 2016, the Southern African Development Community (SADC) recommended that Lesotho implements constitutional, security sector, governance, media and judicial reforms as part of efforts to achieve lasting peace and stability in the country.

It was against that background that in May 2017, Justice Majara appointed the JRC which comprised of Justices Semapo Peete, Teboho Moiloa and the now deceased ‘Maseshophe Hlajoane.

The three-member committee consulted various stakeholders who included the Law Society of Lesotho, the law faculty of the National University of Lesotho (NUL) and civil society organisations before drafting a document of proposed reforms.  Key among these are the proposals to abolish the role of the prime minister in the appointment of judges as well as in the impeachment of the chief justice.

A copy of the JRC’s proposals, seen by the Lesotho Times, proposes that the prime minister not have any say in the appointment of judges, including the chief justice, who should be appointed by the king on the advice of the JSC and with the approval of the Council of State.

To ensure transparency in the appointment of judges, it recommended that the JSC advertises the vacancies and invites stakeholders and the public to submit nominations. The JSC should also conduct public interviews of the aspirant candidates and shortlist three nominees for each post of judge for the consideration of the King and the Council of State.

The JRC further proposes that the removal of the chief justice or any judge only be initiated by the JSC. It proposes that the JSC comprise of the chief justice as the chairperson, the deputy chief justice, the judge president of the High Court, the attorney general, a legal practitioner of at least seven years’ experience designated by the Law Society, a professor or senior lecturer of law designated by the faculty of law at the NUL and a person of high moral integrity representing civil society.

The JRC further recommended that “all major judicial appointments …be shielded from the influence of party politics in order that the legitimate authority (of the judiciary) and the confidence of people in the judiciary be maintained”.

“The active role of the executive in the appointment and impeachment process calls for a drastic overhaul in order to strengthen and ensure judicial independence, that is, the security of (judges’) tenure and the meaningful separation of powers. This is essential in a vibrant democracy and for the rule of law.”

The JRC recommended that any judge, including the chief justice, be removed only on limited grounds of the judge’s inability to execute their functions, infirmity of mind or physical incapacity. The judge and chief justice can also be removed for “misbehaviour or misconduct constituting a breach of a code of conduct prescribed for judges”.

The proposals to abolish the role of the executive in the appointment and removal of judges came against the background of heightened clashes between the judiciary and the executive in recent years as exemplified in the efforts to impeach judges by both Dr Thabane and his predecessor, Dr Mosisili.

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