Stop opaque judges’ appointments: analysts

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Bataung Moeketsi

THE long-awaited judicial reforms are needed now more than ever to address the ongoing crisis in the judiciary which has seen the Acting Chief Justice ‘Maseforo Mahase and Attorney General Haae Phoofolo sit as the Judicial Service Commission (JSC) to “clandestinely” recommend the appointment of five new judges, analysts have said.

Justice Mahase and Advocate Phoofolo sat as the JSC on 20 August 2020 and recommended the appointment of new judges to ease the burden on the current eight who have more than 4000 cases to attend to.

The five recommended for appointment are Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha.

According to authoritative government sources this week, King Letsie III has refused to appoint the five and 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.

“A sitting of all the members of the JSC,” a source said, “would ensure that the names recommended to His Majesty for appointment as judges are based on a wider consensus rather just two members (Justice Mahase and Advocate Phoofolo)”.

The issue has already sparked a fierce row between the JSC and the Law and Justice Minister Professor Nqosa Mahao. Prof Mahao accused Justice Mahase and Advocate Phoofolo of “clandestinely” recommending the five candidates for appointment without consulting him as the responsible minister.

He said their actions were contrary to the government’s stated commitment not to appoint any new judges until after the implementation of the judicial reforms. The judicial reforms are part of wider multi-sector reforms recommended by SADC to achieve lasting peace and stability in the country. It is envisaged that under the reforms, there will be a much more public and vigorous process of vetting any potential appointees to the bench as is done in South Africa.

But the JSC insists that there was nothing amiss about Justice Mahase and Advocate Phoofolo sitting and nominating their five candidates on their own.

High Court and Court of Appeal Registrar Adv ‘Mathato Sekoai, who is also the secretary of the JSC, vociferously defended Justice Mahase and Adv Phoofolo, saying they formed a quorum when they met and made the recommendations.

Adv Sekoai accused the government of interfering with the JSC’s work of recruiting new judges. She said the JSC was not required to inform the government before recommending anyone for appointment.

“According to the constitution, the nomination of judges is done solely by the JSC.

“Section 132(8) of the constitution states that the JSC shall not be subjected to any control or direction of any other person or authority. Section 132(10) states that the JSC may continue its business in the absence of other members. Rule 5 of the JSC rules states that two members form a quorum as long as they agree on the subject of the day.

“In the laws I have quoted above, none of them talk about the role of the government in the nomination of judges. I do not know of any law which gives the government the power to interfere with the appointment of judges.”

Indeed, the current laws do not require the JSC to get the government’s approval for the nomination of prospective judges. Neither does the law prevent Justice Mahase and Advocate Phoofolo or any other two members of the JSC from sitting and making recommendations for appointment by King Letsie III.

But as pointed out by analysts, any law which allows just two JSC members to make such crucial recommendations is a bad law and needs to be repealed or amended.

Any law which provides for the establishment of such a narrow, unrepresentative JSC consisting of only four members needs to be amended to provide for a broader and more inclusive JSC which is representative of all stakeholders including the Law Society of Lesotho and the magistrates.

“In the words of the English novelist and critic Charles Dickens, the current Lesotho law is an ass for allowing two people to constitute themselves as the JSC and make such crucial decisions,” said a lawyer who spoke on condition of anonymity.

“The arguments raised by Adv Sekoai in defence of Justice Mahase and Advocate Phoofolo are the very reasons justifying the need for a new law which enlarges the JSC to include representatives of other judicial stakeholders.

“As Prof Mahao rightly argued, the JSC should be reformed to have a wider representation inclusive of all the relevant stakeholders. In other countries, the JSC includes representatives of magistrates, law societies, law lecturers and other interested groups.

“This is the kind of JSC we need. We cannot be hiding behind the existing bad laws to justify having a quorum of just two people making such critical decisions. The current laws are very bad because there is no onus on the JSC to justify its recommendations. We don’t know how Justice Mahase and Advocate Phoofolo decided on the appointment of the lawyers who have never served as magistrates.

“We need an open and transparent process where the JSC will explain its choices particularly when seasoned magistrates like (Chief Magistrate) ‘Matankiso Nthunya have been overlooked despite serving for 25 years,” the lawyer said.

His concerns have been shared by the magistrates. Operating under the banner of the Judicial Officers Association of Lesotho (JOALE), the magistrates have written to the JSC, questioning why their members have been consistently overlooked for promotion as judges.

This despite that a significant number of magistrates have been dispensing justice in the lower courts for 10 years or more. Some like Chief Magistrate Nthunya have been magistrates for 25 years.

In his letter to the JSC, JOALE secretary Masopha Kao asks why relatively few magistrates have been appointed as judges over the years despite their qualifications and vast experience in dispensing justice in the lower courts. Magistrate Kao also notes that there have not been any dismissals of magistrates for incompetence, suggesting that they have acquitted themselves well over the years.

“Every professional, across all professions globally, would like to progress in their field. As such, it is every magistrate’s dream to become a judge,” Magistrate Kao states in his 24 August letter to the JSC.

“The High Court and Magistrates’ Courts are part of a single judiciary in Lesotho. Thus, magistrates have a legitimate expectation that, as part of their progression within the judiciary, they would be given an opportunity to serve as His Majesty’s judges whenever such opportunities arise…

“We thus, propose that above everyone else, magistrates be given the first priority in the upcoming appointments.”

Another lawyer, Adv Kelebone Maope, weighed in on the matter, saying the opacity surrounding Justice Mahase and Advocate Phoofolo’s recommendation of the five candidates “makes a compelling case for the urgent implementation of the judicial reforms to ensure transparency in the recruitment of judges”.

“The minister (Prof Mahao) is the responsible authority and the JSC was wrong to leave him out of the consultations for the recruitment of judges.

“Although the JSC is an independent body, it still has to communicate with the government on crucial issues such as the nomination of judges.

“It is true that the JSC is an independent body but it is equally true that the JSC is part of the government. Various arms of government work together to ensure good governance,” Adv Maope said.

He also questioned how two out of four JSC members could be said to be a quorum. He said no explanations had been given regarding the absence of the other two JSC members, adding the entire nomination process was shrouded in secrecy which could only be rectified by the implementation of new laws in terms of the judicial reforms.

“A most disturbing matter is that it is not clear why the other JSC members were not there.

“It is also doubtful whether the process went well because you don’t hear that there were ever any advertisements calling for applications for the posts of judges. Who were the applicants from the list that the five were chosen? Were they more qualified than other applicants,” Adv Maope asked.

Another lawyer, Adv Thulo Hoeane, concurred saying the nomination of the five candidates was “one of the most unfair processes that I have ever seen in this country”.

Adv Hoeane said while some might take a legalistic view and say the two JSC members were well within their rights, the issue of the appointment of judges was “much broader than that”.

“Judges must be people of integrity that the nation has full confidence in. Engendering public confidence begins with the appointment process which must be transparent and free of controversy.

“I stand with Professor Mahao when he says the process must be transparent.

“The judiciary is in disarray and it goes without saying that there is a shortage of judges. But this is not the way to go about addressing that issue,” Adv Hoeane said.

He said the recruitment process had to be transparent to ensure that inexperienced people with questionable credentials are not elevated at the expense of seasoned professionals.

“Chief Magistrate ‘Matankiso Nthunya is a case in point. She is a more than qualified to be a judge and deserves it but her juniors are often promoted to the bench at her expense.

“There are many senior lawyers who are more than qualified for the position as well. It is therefore important that the recruitment process is transparent so that every deserving individual has a fair chance to be promoted,” added Adv Hoeane.

Another lawyer who spoke on condition of anonymity said the presence of Justice Mahase threw the entire nomination process into controversy.

“She (Justice Mahase) is not even a substantive chief justice to begin with. She could be removed at any time. How then, does a person who is only acting get to be involved in decisions which will have a lasting, permanent mark on the composition of the judiciary?

“Moreover, her administrative capacity and her conduct in the execution of her duties has been called into question by fellow judges. This is the same judge who unsuccessfully tried to get the Court of Appeal President (Justice Kananelo Mosito) fired (by former Prime Minister Thomas Thabane) for allegedly usurping her role as head of the judiciary.

“This is the same judge who unprocedurally took over the bail hearing of the then First lady (‘Maesaiah Thabane) only for her decision to be revoked by the apex court. All her judgements pertaining to the All Basotho Convention (ABC) power struggle between the party leader (Thomas) Thabane and his deputy (Prof Mahao) were overturned by the apex court.

“She is therefore not a paragon of judicial virtue. Regardless of the fact that the law recognises two JSC members as a quorum, it cannot be that someone with such a reputation is allowed to preside over so serious an issue. We need the judicial reforms now more than ever,” the lawyer said.

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