Mohalenyane Phakela / Nat Molomo
THE name of the Acting Chief Justice ‘Maseforo Mahase has been on the lips of most Basotho in the past few months as the country and the international community continues each week to be treated to fresh instalments of the riveting politico-legal drama that is the power struggle between powerful factions of the ruling All Basotho Convention (ABC).
As one analyst pointed out to the Lesotho Times this week, some episodes of this drama, particularly Justice Mahase’s 8 May 2019 judgement which nullified the election of Professor Nqosa Mahao and others to the ABC’s national executive committee (NEC) would have been humorous, had they not been a tragic reflection of the parlous state of the judiciary in the country.
According to legal and political analysts, the ruling which has been described as a “fake judgement” by Prof Mahao (himself a legal expert), points to the predicament that judges including Justice Mahase find themselves in one when they are beholden to and vulnerable to the machinations of an executive which exercises an overweening role and influence in the appointments and dismissals of judges.
And as long as the system is not reformed to remove the role of the executive in the appointments and dismissals of judges, the analysts say the country should “expect more bizarre judgements in cases that involve powerful figures within the executive”.
A fortnight ago on 8 May, the country was stunned by the judgement that was issued by Justice Mahase in the ex parte (one sided) application brought before her by the unheralded trio of ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.
In that judgement, Justice Mahase nullified the ABC’s 1-2 February 2019 conference which ushered in Prof Mahao and others into the ABC’s NEC. Prof Mahao had been voted in as the deputy leader, a highly coveted post which puts him in pole position to succeed ABC leader and Prime Minister Thomas Thabane in both party and government when the veteran leader eventually bows out.
Justice Mahase also ruled that the old NEC should remain in office as an interim structure for a year and use that time to amend the ABC constitution to provide for the holding of NEC elections “which it currently does not provide for”.
What stunned the nation and indeed the Mahao faction was the speed with which the judgement was handed out in the case that had been filed that same week. The case was heard and finalised notwithstanding the fact that there was a similar, long-standing application which had been filed before the same judge by the more prominent trio of ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe). The trio on 11 February 2019 filed the application seeking an order for the nullification of the results of the ABC’s elective conference on the grounds that the polls were marred by “vote rigging”.
The case has been postponed on several occasions largely due to the claimed illnesses of some of the lawyers representing the old NEC as well as Justice Mahase’s own illness. On the same day that she delivered the verdict in the application by Lefera, Ntiisa and Makhohlisa, she postponed the Lehana, Sello and Mohapinyane application to 14 June 2019 on the grounds that she was still not physically fit. Yet she found time to pass the default judgment nullifying the entire ABC elective conference.
Justice Mahase has consequently been on the receiving end of a barrage of attacks from the Mahao faction and its supporters who feel that she rushed to issue judgment on the case filed much later because she saw it as low hanging fruit in her bid to stifle Professor Mahao. It was justice Mahase who initially ruled that Prof Mahao could not contest the ABC elections only to have the judgment overturned by the Court of Appeal a shortly afterwards. Her critics now saying she is issuing bizarre judgments because she is desperate to be confirmed chief justice and she knows she can only achieve that if she avoids annoying the executive.
However, some legal analysts this week told the Lesotho Times that Justice Mahase and other judges should not be castigated or mocked for the judgments no matter how bizzarre. Rather, the analysts say, they deserve sympathy because there is always the real risk of them being pressured to decide in favour of the powerful forces in the executive who have a say on their careers. The analysts say that without serious judicial reforms to free the judiciary from the clutches of the executive, the idea of impartial decisions in cases involving the executive will remain pie in the sky.
Senior National University of Lesotho political science lecturer, Dr Monyake Moletsane, told the Lesotho Times that Justice Mahase may be compromised in that she is seeking to be confirmed as the substantive chief justice. He said there are potential criminal cases hanging over her family which the executive could push for investigation and prosecution to punish the judge if it she failed to do its bidding.
The cases involve allegations that Judge Mahase’s husband, Thabiso, was involved in masterminding the attacks on the houses of former minister Motloheloa Phooko and former deputy Prime Minister Mothejoa Metsing during one of the turbulent periods in Lesotho politics in 2007 as well as the attack on State House in 2009 in which then premier Pakalitha Mosisili was nearly killed. Mr Mahase and his son. Teboho, were also implicated in a M3 million robbery of money meant for old people’s pensions, among a plethora of allegations, raised against Justice Mahase’s family.
Dr Moletsane said the acting chief justice could therefore not freely make sound judgements which went against members of the executive. He said Justice Mahase should have recused herself from the ABC cases and allocated them to other judges. She would do well for herself and the reputation of the judiciary to start recusing herself from all such cases.
“I think this issue of the Acting Chief Justice has the hallmarks of a compromised judge and the signs are out there for all to see. She has a lot at stake as she seeks to be the substantive chief justice and on the other hand there are unconfirmed criminal activities which her family is said to have engaged in. All of this may have put her in a tight corner.
“The ABC constitution is clear that there shall be an executive committee which is elected after every five years. Her judgement over the matter raises a lot of eyebrows not least of all because of the secrecy in which the entire (Lefera, Ntiisa and Makhohlisa) case was handled.
“Before this case, there was already a public outcry over her conduct regarding the ABC. The best she could have done was recuse herself and allocate the matter to another judge. Judges must not allow themselves to be tainted by politics,” Dr Moletsane said.
Another legal analyst, Lira Theko, said that Justice Mahase’s decision to nullify the elective conference only served to create more confusion within the ABC rather than solve the problems afflicting the ruling party.
“There is a question which remains unanswered in this whole scenario. What is the basis of her (Justice Mahase’s) judgement which nullified the elective conference? It is not understandable how she got to a point of judging a case without considering another similar one which has been pending before her for a long time now.
“The effect of the judgement is that it will not only frustrate the ABC but those internal conflicts will further frustrate parliament, cause the collapse of the government and ultimately lead to unnecessary national elections,” Mr Theko said.
A practising lawyer, Advocate Napo Mafaesa, said that the entire judiciary would never be independent in the exercise of functions, particularly in cases involving members of the executive, as long as the national constitution still allowed the executive to appoint the heads of the judiciary including the chief justice and the Court of Appeal president.
“The national constitution allows the executive to influence the judiciary in that the government has powers to appoint the heads of the courts. This opens a gap for which the politicians can exploit to their advantage. Judicial and constitutional reforms that are necessary are those that will strip the prime minister of his powers to appoint and dismiss judges,” Adv Mafaesa said.
He said while some may argue that the Judicial Service Commission (JSC) played a huge role in the appointment of judges, it was not in reality free of the overweening influence of the executive. The JSC was in fact a mere rubber stamp of executive decisions in the appointment of judges.
“The JSC is so secretive in the appointment of judges and it is not clear what procedures are followed or what qualifies one to be appointed a judge. The attorney general, who is the executive’s lawyer, is a member of the same JSC which appoints judges and therefore there is little transparency, if at all, in the way that the JSC exercises its functions with regards to the appointment of judges. The situation is different and more transparent in South Africa where there are public notices, public interviews and shortlisting of candidates before judges are appointed,” Adv Mafaesa said.
Even the judges themselves are alive to the reality of executive interference in the judiciary.
The Judicial Reforms Committee (JRC) comprising of three judges, which was appointed by the now suspended Chief Justice Nthomeng Majara, proposed the abolishment of the prime minister’s powers to appoint and impeach judges.
The JRC, which comprised of Justices Semapo Peete, Teboho Moiloa and the recently deceased ‘Maseshophe Hlajoane, consulted various stakeholders including the Law Society of Lesotho, the law faculty of the National University of Lesotho (NUL) and civil society organisations before drafting a document of the proposed judicial reforms. Key among these are the proposals to abolish the role of the prime minister in the appointment of judges and the impeachment of the chief justice.
The prime minister should not have any say in the appointment of the chief justice who should be appointed by the king on the advice of the Judicial Service Commission (JSC), with the approval of the Council of State.
“Lesotho is a democratic country and all major judicial appointments …should 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 (sic) 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 states.
To ensure transparency in the appointment of judges, the JRC recommended that the JSC should advertise the vacancy, invite stakeholders and the public to submit nominations. The JSC should then conduct public interviews of aspirants and shortlist three nominees for the post of judge for the consideration of the King and the Council of State.
The JRC proposed that the removal of the chief justice or any judge only be initiated by the JSC. It proposed that the JSC should 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.
Only when such judicial reforms have been implemented, can Lesotho avoid the scenario where judges may feel beholden to the executive to the extent of passing what may be viewed as “fake judgements” by litigants and observers.