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Thabane demands recusal of all local judges

by Lesotho Times

says they cannot be impartial in Chief Justice Nthomeng Majara’s case

Marafaele Mohloboli

IN an unprecedented move, Prime Minister Thomas Thabane has asked Judge Tšeliso Monaphathi and all local judges to recuse themselves from presiding over the case in which the Chief Justice Nthomeng Majara is challenging his (Dr Thabane’s) moves to remove her from office.

In the High Court papers filed on his behalf by Attorney General Haae Phoofolo yesterday, Dr Thabane said all the local judges were interested parties in the case and could not be counted on to make an impartial ruling on the matter.

Dr Thabane also queries Justice Majara’s appointment of Justice Monaphathi to hear her application against the premier and states that there are high chances that he would be biased as he is already presiding over other cases involving the executive and the judiciary.

Dr Thabane filed his application in response to last week’s court application by Justice Majara for an order to interdict him (Dr Thabane) from recommending her suspension and impeachment over a plethora of misconduct allegations.

Dr Thabane accuses Justice Majara of eight counts of misconduct which include the alleged failure to preside over cases for two years.

Another charge pertains to Justice Majara’s controversial deal to rent a house for M27 000 per month from a colleague Justice Teboho Moiloa. The amount is way above the M4000 statutory allocation for her housing allowance.

Justice Monaphathi is the presiding judge in Justice Majara’s application and this has not gone down well with Dr Thabane who has not only questioned his impartiality but that of all local judges too.

According to Dr Thabane, it would not be proper for any local judge to hear Justice Majara’s application because there is a conflict of interest arising from the fact her application seeks a determination about whether or not the executive is interfering with the independence of the judiciary which all local judges are part of.

“The alleged measures (the suspension and proposed impeachment of Justice Majara) are said to constitute a failure on the part of the government to assist the courts or the judiciary in the protection of their independence.

“This is what is being said by the chairperson of the Judicial Service Commission and any judge falling under the auspices of the Chief Justice is expressly or by clear implication disqualified from hearing this case,”.

Dr Thabane further argues that on that basis, “some or all of the (local) judges will have a substantial if not complete interest in the matter of their Chief Justice”.

“Any of the judges will naturally feel or exercise the self-preservation strategy to avoid the alleged unwarranted intrusion in their independence.

“A reasonable person who is aware of the situation and facts of the present case (Justice Majara’s application) would readily and gladly welcome the application as a defensive tool and be inclined to seize the opportunity of preserving of defending themselves thereby being biased in favour of the applicants

“In the circumstances, His Lordship Justice Monaphathi and for that matter, any one of the judges of the Lesotho is disqualified from sitting in judgement to determine the main constitutional application (against the proposed impeachment).”

Dr Thabane further argues that there is something “weird” about the continued selection of Justice Monaphathi to preside over cases involving the executive in their disputes with the judiciary.

He states that there is the likelihood of bias in Justice Majara appointing Justice Monaphathi to preside over the case in which she herself is an interested party.

He argues the bias is high likely because Justice Monaphathi is already the judge in another case in which Justice Majara’s “lawyers” have approached the courts to forestall any attempt to impeach Justice Majara.

This is in reference to the case in which three prominent lawyers, King’s Counsel Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika, lodged an urgent application in February this year to block Justice Majara’s removal by Dr Thabane.

The three lawyers indicated in their court papers that they want the court to prevent the government from firing the Chief Justice on the basis of the 9 December 2017 utterances made by the Minister of Law and Constitutional Affairs, Lebohang Hlaele, that Justice Majara should either resign or be impeached for corruption.

Mr Hlaele said the Chief Justice was corrupt and gave her an ultimatum to either resign or face an impeachment tribunal for allegedly engaging in a corrupt deal of renting a house for M27 000 per month from Justice Teboho Moiloa.

Mr Hlaele made the remarks soon after receiving a petition from the scores of Basotho who staged a protest march to demand the swearing-in of Justice Kananelo Mosito as the Court of Appeal President after his re-appointment in August last year.

Justice Mosito’s appeal against a February court ruling against his re-appointment has not been heard and Dr Thabane argues in his application that the case will be stalled as long as the likes of Justice Monaphathi continue to grant interim relief orders and the Judicial Service Commission does not appoint foreign judges to make substantive rulings.

“I am suspecting bias and the likelihood of that is reasonable on the part of Justice Monaphathi particularly because this is the third case in a row in which matters involving the speech of the Minister of Law are being handled by him under weird circumstances,” Dr Thabane states.

“I consequently found it necessary that a substantive application be made for the recusal of His Lordship Justice Monaphathi or any other judge of the High Court of Lesotho primarily because the competence of the High Court judges was initially discussed and His Lordship Justice Monaphathi was unable to hear the matter of the three lawyers

“There is a growing trend of Justice Monaphathi granting interim relief orders on the alleged doctrine of necessity to pave way for the hearing of the substantive reliefs by foreign judges only to create a default position because the Judicial Service Commission hardly appoints judges to hear such cases. The classic example is the case in which the Court of Appeal has been stalled for strategic reasons by the order granted by Justice Monaphathi against me.”

Dr Thabane’s application will be heard on 17 June this year.

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