Judges’ recruitment leaves more questions than answers

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THE process of recruiting new High Court judges remains mired in opacity and unhelpful secrecy. It continues to raise more questions than answers.

Like the analysts who speak on the issue elsewhere in this this edition, it is our considered view that this opacity is reason enough for the government and stakeholders to expedite the judicial reforms.

It is only after reforms that we can be guaranteed a transparent process which will be acceptable to everyone. The buy-in from all sectors is necessary for the retention of confidence in the judiciary- a key arm of the state alongside the executive and legislature.

As reported by the Sunday Express in its latest edition, the Judicial Service Commission (JSC) announced that the recruitment of judges was back on track and six candidates had been shortlisted.

The six are Fumane Malebana Khabo, Moneuoa Kopo, Realeboha Mathaba, Makhele Julius Sekati, Kuena Mabotsoa Thabane and Mamotšelisi Khiba.

Advocate Mathaba is a former Acting Commissioner General of the Lesotho Revenue Authority (LRA) while Mr Kopo worked as LRA Senior Manager: Internal Affairs.

Ms Khabo is Labour Court president while Mr Sekati works at the Law Office in the Ministry of Law and Justice. Ms Thabane is a former NUL law lecturer who is now in private practice. Ms Khiba, a former LRA board member, is now in private practice.

On the face of it, all six appear to have basic credentials enabling them to meet the minimum requirements for appointment.

While all have the relevant law degree, only Ms Khabo appears to possess some form of experience in adjudicating cases in the courts as   she is the Labour Court president.

This then raises questions about how the other five were chosen ahead of people who not only meet the minimum requirements but also have vast experience in the courts.

Initially there were 36 candidates before the list was whittled down to just six.

Among those who were snubbed by the JSC are Chief Magistrates ‘Matankiso Nthunya (central region), ‘Makampong Mokgoro (northern region) and Manyathela Kolobe (southern region).

The trio boast several years of experience as magistrates. Magistrate Nthunya has been a magistrate for more than 25 years since she was first appointed in 1996.

Now these are not only magistrates but chief magistrates. One would imagine that they would have been favourites considering their vast experience and the fact that we have never heard of any allegations of impropriety and incompetence against them.

The likes of the current Ombudsman, Tšeliso Mokoko, have also been overlooked.

Former Prime Minister Thomas Thabane’s daughter, ‘Mabatšoeneng Hlaele, has also been overlooked despite that she is a seasoned lawyer and law lecturer at the National University of Lesotho (NUL).

Logic dictates that the likes of Chief Magistrates Nthunya, Mokgoro and Kolobe should have been given the nod over fellow candidates due to their several years of experience presiding over cases and being at the helm of the magistrates’ courts.

We are not saying they are automatic choices and should have been shortlisted under any circumstance. But the public deserves to know why people who appear eminently qualified were not considered. The nation needs to know what makes any of the magistrates unsuitable for logical progression to the High Court bench. We hold no brief for these chief magistrates. But you cannot expect a clerk in the bursar’s office at a secondary school to be appointed headmaster ahead of the most senior teacher.  Basic logic cannot accept that.

The 22 July 2021 circular by JSC secretary, ‘Mathato Sekoai, does not provide any clarity as to how the choice of the six was arrived at.

All it says is that the JSC met on 22 July 2021, “considered the applications and nominations and came up with the six candidates who have met the shortlisting criteria published under the Judicial Service Commission Circular N0.1 of 2021 dated 31 March 2021.

“The six are Fumane Malebana Khabo, Moneuoa Kopo, Realeboha Mathaba, Makhele Julius Sekati, Kuena Mabotsoa Thabane and Mamotšelisi Khiba. The interviews for the candidates will be held on 16 August 2021,” Adv Sekoai states.

Unfortunately, we have not had sight of the 31 March 2021 circular and even if we had, it would still not be clear how the likes of Nthunya and her fellow chief magistrates did not meet qualifying criteria.

We do not even know if all the JSC members attended the meeting which shortlisted the six. We do not even know why only six were shortlisted when all along the JSC has been saying it is looking for seven judges to ease the shortage which has resulted in a backlog of more than 4000 cases.

All of these questions would have been answered and there wouldn’t be any lingering doubts about the suitability of the six over everyone else had the JSC conducted a transparent process.

This is precisely why we need the government and all stakeholders to expedite the judicial reforms so that we can have transparent recruitment processes that do not cast giant shadows of doubt on the credibility of processes to recruit judges.

 

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