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Recruitment of judges begins

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Mohalenyane Phakela

THE Judicial Service Commission (JSC) has begun recruiting seven new judges to ease the huge backlog of cases in the High Court.

The recruitment process got underway this week with the publication of the vacancies on the government website on Monday.

The JSC invited qualified candidates to apply or be nominated for the posts by the public. The deadline for the submission of applications and nominations is 27 February 2021.

According to the JSC, there will be background checks on all applicants and nominees and they will also be required to prove that they are in good health. This will be followed by the shortlisting of the candidates and public interviews to choose the final list of nominees to be submitted to His Majesty King Letsie III for appointment.

“The Judicial Service Commission (JSC) invites individual applications and nominations by members of the public and non-profit organisations for candidates to fill seven vacancies of puisne judges in the High Court of Lesotho,” the JSC said this week.

“Members of the public interested in nominating persons must complete the Nomination Form (JSC/JHC/01) which provides the basic information about the candidate and must be signed by the applicant or nominated person.

“Nominees and individual applicants must also complete the following:

  1. Authorisation Form (JSC/JHC/02) which allows the (JSC) secretary to obtain a statement of the applicant’s or nominee’s current and past standing from the Law Society and other regulatory bodies.
  2. Background Check Consent Form (JSC/JHC/03) to consent to a background check of health status and general compliance with laws.
  3. Questionnaire (JSC/JHC/04) to provide basic data for oral interview and subsequent assessment by the Judicial Service Commission.”

The JSC said it will consider candidates who have served as judges locally, in any Commonwealth members state “or in any country outside the Commonwealth that may be prescribed by parliament”. It also said it would consider candidates who are legal practitioners or qualified to be such.

“Interviews with short-listed candidates will be conducted in public, meaning that members of the public and the media (both electronic and print) are free to attend the interviews but not the deliberations by the commissioners.

“Interviews will be held from 29 March to 2 April 2021 in the High Court Conference Room, Maseru or any other venue to be decided upon,” the JSC said.

This is the first time the JSC has advertised the judges’ vacancies. It will also be the first time for candidates to be publicly interviewed.

The new measures are aimed at ensuring transparency and accountability in the recruitment of judges.

The most recent attempt by former Acting Chief Justice ‘Maseforo Mahase and Attorney General Advocate Haae Phoofolo to recruit five new judges was nullified last December by the Constitutional Court.

Justice Mahase and Adv Phoofolo had met on 20 August 2020 in their capacity as JSC members and recommended that His Majesty King Letsie III appoints Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha as High Court judges.

But the five were not appointed with authoritative government sources saying that King Letsie III had refused to appoint them on the grounds that Justice Mahase and Adv Phoofolo could not just sit on their own and make recommendations without the input of the other two JSC members.

Current Chief Justice Sakoane Sakoane was the other member of the JSC, then in his capacity as a nominated High Court judge. The other JSC member is Public Service Commission (PSC) chairperson, Moshoeshoe Sehloho.

Justice and Law Minister Professor Nqosa Mahao publicly lambasted Justice Mahase and Adv Phoofolo, saying the duo could not sit on their own and recommend the appointment of five new judges without the active participation and input their JSC colleagues.

The stand-off prompted the obscure White Horse Party to file a September 2020 constitutional application to force King Letsie III to appoint the five as judges as per Justice Mahase and Adv Phoofolo’s recommendations.

The little-known political outfit also petitioned the court to declare that Prof Mahao had actively interfered with the independence of the JSC by publicly questioning Justice Mahase and Adv Phoofolo’s moves to have the five appointed without his or the government’s knowledge and input.

But Prof Mahao fought back in October 2020 by filing a counter-application for the nullification of Justice Mahase and Adv Phoofolo’s 20 August 2020 meeting and their subsequent recommendations for the appointment of the five as judges.

The Constitutional Court consolidated the White Horse application and Prof Mahao’s counter-application and heard them as one case.

The constitutional bench comprising of Justices Tšeliso Monapathi, Moroke Mokhesi and Keketso Moahloli dismissed the White Horse Party application on the grounds that Justice Mahase and Adv Phoofolo did not constitute the JSC quorum.

They also ruled that the White Horse Party did not have the legal standing to file the application because it had no interest in the appointment of judges.

The court ordered a fresh process to recruit judges hence the latest move by the JSC to undertake a fresh, transparent recruitment process.

The successful candidates will fill the vacancies left by a spate of deaths, retirements and forced resignation of the judges.

Currently there are only eight judges. This after the May and June 2020 deaths of Justices Lebohang Molete and Lisebo Chaka-Makhooane and the retirement of Justices Semapo Peete and Teboho Moiloa on 31 July 2020.

Before that in 2019, former Chief Justice Ntomeng Majara was forced to step down on the grounds of alleged incompetence by the then Thomas Thabane government

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