Law Society breaks silence
…speaks out on Advocate Mosito and Justice Ramodibedi
Court of Appeal President, Justice Kananelo Mosito, last month indefinitely postponed this year’s first Court of Appeal session after the Judicial Service Commission (JSC) had disagreed with his choice of judges.
The session had been set for 20 April to 5 May, with 38 cases scheduled for hearing during this period. The development has since soured relations between Advocate Mosito, the JSC and a group of five senior lawyers challenging Dr Mosito’s appointment as head of the apex court by then Prime Minister, Thomas Thabane, in January this year.
Meanwhile, the fallout comes at a time a Lesotho national, Justice Mathealira Michael Ramodibedi, is refusing to surrender to Swazi law-enforcement authorities after a warrant for his arrest was issued. Justice Ramodibedi, who has been Swaziland’s Chief Justice since 2010, faces charges relating to defeating the ends of justice and abuse of power. He has locked himself and his family in his home since 17 March 2015, and continues to ignore pleas from Swaziland and Lesotho authorities for him to surrender.
Lesotho Times (LT) reporter Lekhetho Ntsukunyane speaks with Law Society of Lesotho secretary, Advocate Nonny Da Silva-Manyokole, about these developments which have put the country’s judiciary under the spotlight.
LT: Recent developments concerning the indefinite suspension of the Court of Appeal and Justice Mathealira Michael Ramodibedi’s refusal to come out of his home to face the law, have put Lesotho in an unenviable position. What is the Law Society’s position on these developments?
Da Silva-Manyokole: The issue of the closure of the Court of Appeal has posed a problem to the Law Society and the legal fraternity at large. The Society is the overseer or watchdog of the judicial system or the administration of justice in our country, and this is enshrined in the Legal Practitioners Act. What this means is we represent both the lawyers and the nation, and we have this issue where the Judicial Service Commission (JSC) has refused to endorse judges nominated by the president of the Court of Appeal for reasons given in the letter addressed to the president. However, the Law Society found it wise, and also in line with the principle of hearing both sides, to write a letter to the JSC about it. The JSC, in return, reaffirmed their former stand on why they refused to appoint the judges. So our concern is not really about the politics of the whole matter. Our concern is having the Court of Appeal closed is going to impact on the rights of all the litigants whose cases were supposed to be heard during the suspended session. So basically what that means is there is no administration of justice, and we normally say justice delayed is justice denied. What we are advocating for as the Law Society is to exert pressure on the JSC to facilitate the appointment of judges for the court. But what we also realised was that they were insistent on the three-person rule; and it is not a law. We have ascertained that it was not a law but it was just a rule or a practice. And basically where we are now is a state of crisis, where we need the court to operate. Right now we realise there is a tug of war. People are exercising powers. Whoever has power is using it to fight. And we want everybody to rise above that and respect their offices so that justice is administered.
LT: If you could explain the three-person rule…
Da Silva-Manyokole: The three-person rule basically means that whenever there is a vacancy in the Court of Appeal or when a judge is being sought, where there is one post, you have to submit three names or nominees so that the JSC is at liberty to pick the one that they feel is more suitable for the position.
LT: Who has the power to make these nominations?
Da Silva-Manyokole: The person with the power to nominate is absolutely the president of the Court of Appeal. So he will submit the names to the JSC, including their qualifications and CVs, and the JSC will sit and pick the person that they will find most suitable for the job.
LT: In the case in point, did the president follow this procedure?
Da Silva-Manyokole: Absolutely not. Basically, the Court of Appeal session was first postponed for a week. So since the president was appointed in January, and the court had to sit in April, and the fact that some judges of the Court of Appeal resigned in the fashion they did, it exerted pressure on him to act with speed. Even in his letter which is known to everybody now, he sought funds from the (court) registrar and was informed there were no funds to assist him head-hunt suitable judges. Basically, it just tells us that it was difficult for him to go about hunting, probably now for argument’s sake, let’s say 12 judges, because even for the four judges he wanted appointed, he was meeting certain difficulties. So even if the three-name rule is necessary, but due to the urgency of the matter, the JSC should have at least tried to facilitate by saying we understand there is a rule of this nature but we can just appoint two judges plus ex-officio judges of the High Court to enable the court to sit. Then at least in the next October session, they can try to sort out the remaining judges.
LT: As the Law Society, did you make this suggestion in the letter you wrote to the JSC?
Da Silva-Manyokole: Absolutely not. We didn’t. Basically we just wanted to know the reasons why they did not approve the nominations. But fortunately or unfortunately, we realised that they gave the same reasons that they gave to the president. We will elaborate further on the issue because we intend to hold a press conference soon where we will reveal in great detail, what was contained in that letter. But it was more or less similar to the one the president had.
LT: So what is going to happen concerning the 38 cases which were supposed to be heard in the session?
Da Silva-Manyokole: There is a cloud of uncertainty about this because what the president of the Court of Appeal said was that the session has been postponed sine die, until further notice. So further notice could be next year, two years’ time or even five years. We are not sure. But right now, we would want to deal with this session so that at least if we exert enough pressure for the JSC to understand where we stand with regards the administration of justice. Hopefully, they can appoint those judges and the Court of Appeal sits even in June so that there won’t be a backlog of cases.
LT: As the Law Society, how far can you go in as far as making the JSC accountable?
Da Silva-Manyokole: The unfortunate thing is it seems the JSC is acting autonomously. It rules itself. It is as if there is no check on it because even in the letter they have written, they clearly showed us that we do not have power over them, hence the fact that we are not even part of the JSC or even observers. But by being given power under the Legal Practitioners Act to fight for justice, it means we can go to any extent, either legally or otherwise, to exert pressure on the JSC to act in order to protect justice. So basically, the law gives us the power to go to court, the media or wherever for our voice to be heard so that at least we would have done something to protect justice.
LT: Let’s talk about Justice Ramodibedi. A warrant has been issued for his arrest in Swaziland but he is refusing to hand himself over to the police and face the charges he is being accused of. What is the Law Society’s position on this matter?
Da Silva-Manyokole: With regards to the issue of Ntate Ramodibedi, it would be difficult for the Law Society to act because what we are now talking about is somebody who was not deployed by Lesotho to another country. He went to Swaziland on his own. And having been charged with certain criminal activities in that particular country and resisting arrest, all we can do is watch for now. We are just trying to figure out why he is refusing arrest and what Swaziland will do about that. He is a law-enforcement person; he knows what he is doing. The fact that he does not want to be arrested, he doesn’t want to stand trial for his side of the story to be heard. Really, I am not even sure what he wants our country to do for him. But basically as the Law Society, normally we would have spoken if he had said he was being tortured or I am being denied a fair trial. Right now, as it stands, even in international law, states are sovereign. Lesotho cannot interfere with how Swaziland deals with its own justice system. But when there is unfairness and he was not being afforded a fair hearing, or he was just thrown into jail without seeing a day in court, then we can talk as protectors of international law or international treaties that we have signed with other countries. But as it stands right now, we are tightlipped. We cannot really say it is wrong for Swaziland to indict the man or whether it is wrong for him to remain in his house.
LT: Since Justice Ramodibedi’s standoff started in 17 March 2015, did you, as the Law Society of Lesotho, ever talk about this matter with your counterparts in Swaziland?
Da Silva-Manyokole: No. We haven’t had any formal conversation with them with regards to Justice Ramodibedi’s issue.
LT: At a recent press conference, All Basotho Convention Members of Parliament called for the Law Society to pronounce itself on the Court of Appeal and Justice Ramodibedi. To some extent, you were also accused of siding with certain political parties in government, hence the silence. What is your position on this very serious insinuation?
Da Silva-Manyokole: I should set the record straight with regard to our office. Our office is not politically affiliated, whether to the previous government or the present one. If we feel something is right or is infringing on the rule of law or the administration of justice, we will take a stance. So their perception that our silence was due to the fact that we are affiliated to the present government is wrong. On the issue of Justice Ramodibedi, Swaziland should administer its justice the way it feels is right. The MPs are just in a hurry for us to say something. We are basically watching and trying to determine what is really going on. Right now, we don’t know the man’s side of the story. We are waiting to hear what he has to say and then we can pronounce ourselves on the issue. About the Court of Appeal, we are constantly in conversation with the JSC. We will apply pressure on that one so that at the end of the day we see justice being done.
LT: There is also an issue of the five lawyers who are challenging the appointment of Justice Mosito as president of the Court of Appeal. What do you, as the Society, say about this?
Da Silva-Manyokole: Before Ntate Mosito was inaugurated, we had a meeting as the Law Society, as we tried to find out whether it was just or it was the right time for that appointment, taking into account the turbulence that was taking place at the time. But since we are lawyers and we are also driven by the law, everything we do should be supported by the law. We found that even though we can exert pressure on whoever, the law does not give us power to tell the prime minister and the King to stop whatever is being done. We could not stop the appointment or the nomination, as long as it was within the limits of the law. Then our hands were tied. Right now, we are dealing with whoever is the president. We are going to support him if he was rightly nominated. The man is not a criminal. The man is educated. He has obtained his doctoral degree and there was nothing that we could say was going to jeopardize the judicial system. And with regards to the five lawyers, I have realised that they have disassociated themselves from the Law Society. As a matter of fact, I always find that they are belittling the powers of the Law Society because whenever the Law Society has to take a stance they are the first to say this is what we, the five lawyers, are saying. The fact that they are senior lawyers and so forth probably is the thing that makes them feel that they are superior. I have not even seen them in our meetings. What should happen is they should receive a mandate from the Law Society Council if they want to say something on our behalf. But it now looks like we have two Law Societies. So whatever they are doing now or in the future, we are disassociating ourselves from them.