Mohalenyane Phakela
THE Law Society of Lesotho yesterday criticised Acting Chief Justice ‘Maseforo Mahase for her recent attack on Court of Appeal President Kananelo Mosito, saying the clash between the two top judges risked plunging the judiciary into disrepute and compromising the delivery of justice.
The Law Society spoke in the aftermath of Justice Mahase’s 27 May 2019 letter to Justice Mosito in which accused the apex court president of undermining her and usurping the powers of the office of the chief justice.
The beleaguered Justice Mahase was recently on the receiving end of virulent criticism by the full Court of Appeal bench which overturned her controversial order nullifying the All Basotho Convention (ABC)’s 1-2 February 2019 elective conference which ushered in Professor Nqosa Mahao and others into the party’s national executive committee (NEC).
A fortnight ago on 24 May, the apex court not only nullified her controversial order but also referred another case dealing with the ABC power struggle back to the High Court and directed that it be heard by any other judge not Justice Mahase.
But the beleaguered Justice Mahase took exception to the apex court verdict and penned an explosive letter to Justice Mosito accusing him of gross interference with the functions of her office. She also sensationally claimed that Justice Mosito should have recused himself from the cases involving Prof Mahao because the latter was “his boss” at the National University of Lesotho (NUL). Prof Mahao was the Vice Chancellor of NUL until his retirement on 31 May 2019. Judge Mosito lectures at NUL.
In addition to penning the explosive letter, Justice Mahase ignored the apex court directive that the High Court registrar should allocate a judge to hear the ABC case. In addition to Justice Moroke Mokhesi who had been allocated the case by the registrar, Justice Mahase went on to appoint two more judges, namely Justices Sakoane Sakoane and Thamsanqa Nomngcongo.
Yesterday, the Law Society criticised Justice Mahase, saying her disregard for the Court of Appeal was a “recipe for disaster” within the judiciary because the apex court made final decisions which could not be reviewed by any judge.
“Regardless of the merits or demerits of the substance and subject matters of the communication between the Acting Chief Justice and the Court of Appeal president, the mere fact of the existence of this kind of communication does not augur well for the proper administration of justice as it may bring the administration of justice into disrepute,” Law Society president Advocate Tekane Maqakachane said of Justice Mahase’s letter to Justice Mosito.
“This kind of communication has in the past, become a clear fore-runner and pre-cursor to fiefdoms where the head of the judiciary (chief justice) and the head of the apex court in Lesotho do not work together in the interests of justice and the rule of law.
“While other appropriate means such as meetings, telephone calls and bilateral discussions, including the intervention of the Law Society should be followed to raise these concerns between the office of Chief Justice and that of the Court of Appeal President, the failure to use these avenues is a sure trigger of the spiralling of our judicial system, the judiciary and the judicial officers further down into an already existing abyss of sociological illegitimacy. The legitimacy of our courts is based principally on the continued trust which our people hold towards the courts.
“The rule of law is threatened in the absence of legitimacy and without the rule of law, anarchy reigns supreme”.
Adv Maqakachane said although Justice Mahase was the head of the administration of the judiciary, she was nevertheless bound by the decisions of the Court of Appeal. He also said that on the other hand, the Court of Appeal president should understand that the Chief Justice is the boss when it came to administrative issues.
“It is an elementary principle that the lower courts are bound by decisions of higher courts and therefore the order of the Court of Appeal – whether correct or wrong – binds the High Court. We witnessed with great dismay the total disregard of this principle. The fact of the Acting Chief Justice issuing another order that is inconsistent with decision and order of the Court of Appeal is a fertile breeding ground for far-reaching and dire consequences for the judiciary.
“There are also indications of the Court of Appeal moving towards micro-managing the High Court. This is exemplified by the order of the Court of Appeal giving time-lines to the High Court as to when the remitted (ABC) case to the latter should be heard and finalised, without factoring all the circumstances that may inform the rehearing of the matter.”
Adv Maqakachane further said that the Law Society was worried about the unprofessional conduct of some of its members both in court and on social media, “who in the name of freedom, crossed the line into vilifying, disparaging and scandalising Justice Mahase”.
“The office of the Attorney General as the first defender of the constitution has not taken appropriate action to defend the integrity and authority of our courts by instituting contempt of court proceedings against those persons, whether members of the Law Society or the public who have embarked on a journey of insulting members of the judiciary.
“The Law Society of Lesotho therefore calls for disciplinary action against legal practitioners implicated in the unprofessional conduct. It further calls for the police to conduct investigations and where there is sufficient evidence, charge members of the public who are implicated in assaulting the dignity and authority of our courts and judges.
“The society further calls upon judges to uphold their oath to administer justice without fear or favour. An independent judiciary is a vital pillar of an open democratic society that espouses the rule of law and constitutionalism. The judiciary is the last defence of this democracy,” Adv Maqakachane said.
