Mohalenyane Phakela | Pascalinah Kabi
THE secretary of the Judicial Service Commission (JSC), Advocate ‘Mathato Sekoai, has accused Law and Justice Minister Professor Nqosa Mahao of double standards.
This after Prof Mahao vented his fury at JSC members, Acting Chief Justice ‘Maseforo Mahase and Attorney General Haae Phoofolo, for recommending the appointment of five candidates as judges but remained silent when the duo recommended the substantive appointment of acting judge Polo Banyane.
Justice Banyane was yesterday sworn in as a substantive judge by His Majesty King Letsie III at the Royal Palace in Maseru.
Justice Banyane (39) had been acting judge since 2 May 2019. Before then, she had served as a magistrate from 2005. Her appointment brings the number of full-time judges to just eight- a figure which is still not enough to address the huge backlog of cases estimated at over 4000.
Justice Banyane was recommended for substantive appointment by Justice Mahase and Advocate Phoofolo in their capacity as members of the JSC.
The duo met on 20 August 2020 and made the recommendation. They also recommended five others for appointment as judges by King Letsie III.
The five are Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha.
Authoritative government sources this week said King Letsie III had declined to appoint the five, saying Justice Mahase and Advocate Phoofolo should have sought the input of other JSC members.
The sources said His Majesty had ordered the JSC to reconvene with all its four members in attendance. The JSC comprises of the chief justice, the attorney general, the chairperson of the Public Service Commission and a nominated judge.
The recommendations for the appointments of the five sparked a war of words between the JSC and Prof Mahao last week.
Prof Mahao accused Justice Mahase and Advocate Phoofolo of meeting in secret and making the recommendations without consulting him as the responsible minister.
He said the duo did not even constitute a quorum of JSC members.
He also argued that the appointment of substantive judges should be held in abeyance until after the implementation of the judicial reforms recommended by SADC to ensure the best candidates are chosen in an open and transparent process.
Advocate ‘Mathato Sekoai, who is also the High Court and Court of Appeal Registrar, immediately hit back at Prof Mahao saying the government had no business in the appointment of judges. That was the sole responsibility of the JSC as stipulated in the constitution.
She also defended Justice Mahase and Adv Phoofolo, saying they formed a quorum when they met and made the recommendations.
She has renewed her attack on Prof Mahao in the aftermath of the swearing in of Justice Banyane.
She told this publication yesterday that she could not understand why the minister had been silent when Justice Mahase and Adv Phoofolo recommended Justice Banyane’s appointment and only complained when they recommended the other five candidates.
“Justice Banyane was only appointed after Justice Mahase and the Attorney General recommended her before nominating five more judges. Her recommendation was never made an issue (by Prof Mahao) even though it was done in the absence of the other two JSC members.
“Therefore, I am shocked that the recommendation of the other five to be appointed judges is being queried. The JSC is puzzled. It is not that the JSC was not properly constituted when there were only two members sitting. The law allows that.
“Justice Banyane’s appointment was recommended by the same people who recommended five others for appointment as judges. Where was the government? If two JSC members do not form a quorum, why was Banyane’s issue not queried?”
Prof Mahao had argued that before it recommended new appointments, the JSC had to be restructured to have a wider representation of various stakeholders. He said the government had therefore decided that no judge would be appointed on a substantive basis until after the completion of the judicial reforms.
“It is our vision to ensure that the appointment of all judges is made in a transparent manner based on each candidate’s competencies and skills. This can only be a transparent exercise if judges’ vacancies are announced for all interested individuals to apply and go through rigorous screening processes of being interviewed by the JSC.
“We hope that the JSC would have been reformed by that time. It (JSC) needs to have a wider representation inclusive of all the relevant stakeholders. International JSCs are inclusive of law societies, law lecturers and other interested groups. All these issues will be incorporated in the new law to ensure that the JSC is accommodative of all sectors that will be agreed upon,” Prof Mahao said last week.
He could not be reached for comment on Adv Sekoai’s latest comments.