….blasts lawyers who are ‘profiteering’ at expense of clients
THE race for the long overdue elections of the governing council of the body tasked with regulating the legal fraternity, the Law Society of Lesotho, is gaining momentum with two prominent lawyers Fusi Sehapi and Lintle Tuke positioning themselves to lead the organisation.
Ahead of the elections in June, the Lesotho Times’ Political Editor ‘Marafaele Mohloboli, sat down with the outgoing president of the Law Society Council, Tekane Maqakachane (TM), to establish why a body like the law society, that should be the ultimate paragon of virtue and lead the way in upholding legal and ethical standards, has itself failed to put its house in order by failing to follow its own laws and regulations.
The failure had since forced Mr Sehapi, one of the leadership contestants, to sue the Law Society Council, over its failure to convene the elections by more than a year. Me Sehapi essentially accuses Advocate Maqakachane’s council of dereliction of duty, a serious charge to be raised against lawyers who should take the lead in upholding the law.
In this interview, Adv Maqakachane, responds and explains why he and the rest of his council are still in power beyond their mandated period. He explains this is due to circumstances entirely beyond his control. He cites, among other challenges, the disruptions occasioned by the Covid-19 pandemic, which brought the world to a halt between 2020 and 2021, among the reasons why the Law Society Council, which administers the society, could not convene the elections.
He also raises concerns about the questionable conduct of some lawyers in Lesotho and their quality of service, saying the legal fraternity had “morphed from being a public trust fraternity in the service of the people, into a self-interested, self-serving, self-protecting and profiteering sector which – like other professions – had commodified its services……”
Adv Maqakachane, who is currently busy with his doctoral studies, said he was not available for re-election into the council.
Excerpts:
LT: Your term of office has long ended, why are you still clinging to power?
TM: You will be aware of the case filed in the High Court against the council of the Law Society by Advocate Sehapi. That issue (delay in convening elections) is the central legal dispute before the court. I can only state that the Law Society Act (LSA) of 1983 imposes an obligation to hold an AGM for the election of new members of the council; but the Act does also recognize the continued holding of office by the retiring(outgoing) members until successors have been elected. The devastating effects of the Covid-19 pandemic that gripped the globe, the society’s activities in 2021 and the most part of 2022, and other factors rendered it impractical to hold the AGM.
The AGM under the leadership of the current council was supposed to have been held anytime between 1 April 2022 to 31 June 2022, as per the LSA of 1983. Now, with the absence of the inhibiting problems, the LSA prescribes that we hold such an AGM and, as indicated in the next few days the council of the society will be issuing notices for the convening of the AGM…
LT: Have nominations already been made for those who want to run for the elections?
TM: Not yet. The council of the law society will soon issue the necessary notices for the convening of the AGM, prescribing the actions that have to be undertaken by those vying for office.
LT: What are the basic requirements for one to run for the council elections?
TM: There are prescribed conditionalities for eligibility and processes for contestation for certain portfolio positions in the council of the law society. In terms of the Law Society Rules, 2012, ‘only members of the society who practice within the Kingdom shall be eligible for election to the Council.
There must be a written lodgment of the nomination of the candidate and the position vied for, signed by the proposer, seconder and endorsed by the candidate. The nomination form duly executed must be submitted to the S
secretary of the law society. All this must be done after the due notice convening the AGM has been issued by the council. Members of the five-member council are elected at the AGM pursuant to the nomination processes aforesaid.
LT: There is perception that the law society is captured by politicians, lacks independence and is highly conflicted. What’s your take on that?
TM: Perception is always stronger than reality. But perception, though critically important….may be far from reality. There is nonetheless some merit in the public perception of the law society being captured.
If you objectively assess the role played by the law society from the democratization period in 1993 to, in particular, the post-coalition politics in the Kingdom, the law society stumbled and at some point, nearly fell under the load of coalition politics. The law society since 2012, began to sustain cracks which stratified the society along the so-called Big-5 (comprising the likes of veteran lawyers Adv Salemane Phafane KC, Adv Karabo Mohau KC and Adv Zwelakhe Mda KC) and others.
The so-called Big-5 lawyers were perceived to be aligned to a particular political party formation, while those in the council were perceived to be aligned to a different formation. The coalition politics had a stranglehold on the judiciary resulting in the Court of Appeal suffering a functional menopause for almost two years. How the law society conducted itself during that time left much to be desired.
An example is that of the law society remaining silent when the then Chief Justice (Nthomeng) Majara was being attacked by the Minister of Justice during the “Hands-off Mosito campaign”. I came into the Council in 2018, and as President of the law society, and together with the Council as a whole, we had to ensure that the Court of Appeal, began to function properly as the administration of justice was suffering immensely. But that application which we launched at the Court of Appeal (to have judges of appeal appointed to determine a case involving Judge Kananelo Mosito finalized and get the court of appeal functioning again) was also characterized in some circles as a political move. What we only wanted then was to have the dispute surrounding Judge Mosito settled so that the Court of Appeal can operate again. But we got labelled with various epithets. The law society was further brought into the constant quibbling between the Court of Appeal and the High Court, as to which court was taking conflicting decisions concerning the then ruling All-Basotho Convention (ABC)’s 2019 -2021 internal squabbles…..
From the public perception point of view, there is justification for the public to perceive the law society as captured by politics. History does provide the basis for this perception.
I must hasten to add, however, that the reality is that from the time of my assumption of the reins as president of the law society, the organization has practically strived to mend the bridges and the divide which saw some of our members being dubbed as the Big-5, and to ensure that we are a representative body of members on equal footing and collegiality. The law society has also entrenched itself on the rule of law and constitutionalism (principles), to serve the administration of justice without fear or favor, regardless of who wields the power of administering the state. That notwithstanding, the law society has no power to stop those who characterize it as captured from having or holding a different view.
The power of characterization will remain with the characterizer, who will paint us in the colors and patterns of his inclinations, regardless of the reality that obtains with us and our role in the society.
LT: You have stated that calls are yet to be officially made for those who intend to throw their hats in the ring for the elections, yet we have seen one of your members already campaigning fiercely ahead of everyone else. Don’t you think that Adv Sehapi’s campaign has placed him a step ahead of his contestants, and thus given him an unfair advantage over others who are still awaiting the society’s nod to begin their campaigns? Has his fashion and style of campaigning happened before and is it allowed in terms of your regulations…..?
TM: While I will not comment on whether Adv Sehapi’s campaign is allowed or not, it is worth noting that he has a right like everyone else.
However, perhaps before directly responding to your question, it is crucial to point out the following factors.
First, we preside over a profession which like other professional bodies around the globe, have through 20th century liberalism morphed from being a public trust fraternity in the service of the people, into a self-interested, self-serving, self-protecting and profiteering organization like other professional bodies, who commodify and marketize their services.
This monstrosity is a globally perceivable phenomenon that cuts across all traditional and newly established professions: medical, accountancy, clergy, etc. Like all professions, the law society is subjected to specific professional ethics which all members must strictly adhere to. Self-regulation and co-regulation of the law societies (by the society and the High Courts) across the globe has proved to be problematic, hence the call and the global movement for external regulation of the legal profession.
Sometime in 2021, the council of the law society introduced far reaching reforms concerning external regulation of the profession, ensuring members’ public service through pro bono legal services to members of the public, particularly the indigent, and other conditions which had to be fulfilled before a member’s practicing certificate may be renewed, including contributions to a professional indemnity insurance, continued legal education requirements, as well as introducing a social media policy, etc
The council of the law society had drafted the Legal Practice Bill 2019 and the Law Society Rules 2019. What did the members do? They rejected these proposals because they touched the very nerve center of the liberal self-serving membership of the society.
It is not surprising then that you find the issues raised by some of the members as manifestos for election, have absolutely nothing to do with public trust and service to the poor masses of the people of Lesotho. They are matters personal to members themselves. No doubt they are important to be addressed. But to place them as part of the public discourse, and not internal organizational matters, beats the mind and betrays the very confidence of the public which our members have disregarded. That brings me to your question. Campaigning for elections ‘in the fashion Advocate Sehapi is doing’ is certainly the first of its kind.
Whilst members who vie for positions in the council of the society may campaign and garner support, Advocate Sehapi’s model has taken the political party electioneering, provocateuring and pamphleteering approach. Is it allowed? Yes and no. Legally, even members of the law society have constitutional rights to associate and express their views. But law and ethics are not always co-existent and sometimes do not occupy the same space.
The two do not use the same metrics to come to judgment. As a matter of professional ethics and public morality about the legal practitioner, that is a different issue altogether. It is unprofessional conduct.
LT: Do you still wish to serve in the NEC and maybe run for the presidency again?
TM: I am currently pursuing my doctoral studies, to be completed this year, and would not want my study requirements to continue to prejudice my service in the society, which to some degree already has happened. I am therefore not available for any Law Society Council portfolio.
I will therefore retire in the upcoming AGM. That notwithstanding, I will continue to serve the society in some status or role as will be clear in due course.
