Poloko Mokhele
TWO years after regaining power on the back of promises to implement multi-sector reforms, restore political stability, tackle rampant corruption and unemployment as well as stabilise the economy, Prime Minister Thomas Thabane has thus far not lived up to expectations.
Analysts say the veteran leader is only just keeping his head above the water as his government lurches from crisis to crisis brought on by the failure to deal with instability within his own All Basotho Convention (ABC) party, a debilitating liquidity crunch and the consequent chronic poverty and joblessness.
The state of the judiciary is also under the microscope and Dr Thabane has even found it necessary to suspend Chief Justice Nthomeng Majara over a litany of misconduct allegations, chief of which, is the failure to resolve the huge backlog of cases estimated by judiciary sources to be in the region of 4000.
The judiciary is already reeling from the shortage of judges and the situation could deteriorate further amid revelations that the three foreign judges who were brought in to help address the backlog crisis are threatening to leave unless the government urgently addresses their salary grievances.
Analysts this week told the Lesotho Times that Dr Thabane’s embattled administration cannot afford to add the judiciary to other, already grave socio-political and economic crises. They say Dr Thabane needs to urgently address the grievances of the foreign judges because the country cannot afford the loss of confidence in the judicial system and the attendant consequences including the collapse of the rule of law and the resultant flagging of Lesotho as an investment risk.
Politically sensitive criminal cases involving politicians, serving and former members of the security agencies including the trials of double murder-accused former army commander, Lieutenant General Tlali Kamoli, hang in the balance. These may not proceed anytime soon due to frequent postponements and the threats by foreign judges, hired to preside over the cases, to withdraw over their salary grievances.
Two months ago, two Botswana judges, Justices Onkemetse Bashi Tshosa and Kabelo Kenneth Lebotse, were sworn in by the Acting Chief Justice, ‘Maseforo Mahase, as government moved to ensure that the much-delayed high-profile criminal trials got underway.
Zimbabwean judge, Justice Charles Hungwe, was the first to be sworn in January 2019 before the recruitment exercise was suspended in February in the wake of a Constitutional Court challenge by Lt-Gen Kamoli, former Defence and National Security minister Tšeliso Mokhosi, and 14 others, against the recruitment of foreign judges.
Lt-Gen Kamoli and his co-applicants argued that the recruitment of foreign judges was unconstitutional because it “usurped” the role of the Judicial Service Commission (JSC). But the Court of Appeal’s dismissal of Lt-Gen Kamoli’s case in August 2019 cleared the way for the resumption of the recruitment of the foreign judges. The dismissal of the appeal also cleared the way for the pre-trial conferences of the politically sensitive cases to begin in August 2019. The first of these pre-trial conferences was that of Lt-Gen Kamoli and nine others who are charged with murdering former army commander, Lt-Gen Maaparankoe Mahao, on 25 June 2015.
Speaking in August 2019, in the aftermath of Justices Tshosa and Lebotse’s swearing-in ceremony, the Acting Registrar of the High Court, Pontšo Phafoli, said the foreign judges were sourced from Southern African Development Community (SADC) member-states to preside over the high-profile criminal trials.
“We took this step (of recruiting foreign judges) to ensure that the (high profile) cases are heard to finality,” Ms Phafoli said.
“After noting the huge backlog of cases before the courts, we asked for support in the form of additional judges from our development partners and we were able to get the three (Justices Hungwe, Tshosa and Lebotse).
“The expectation is that the criminal trials will run for 18 months but if the cases are not finalised by then, the (foreign) judges’ contracts will be extended to enable them to hear the cases to finality. There are nine high profile cases in all but they (foreign judges) will also hear other criminal cases besides these high-profile ones.”
But the trials might be put on hold as the judges are threatening to quit over the government’s failure to pay their salaries.
This despite the fact that the salaries and allowances are funded by the European Union (EU) which has already released M14, 5 million to SADC which in turn forwarded it to Lesotho last month.
The failure to pay the judges’ salaries is a result of government red-tape and bungling, National University of Lesotho (NUL) political science lecturer, Mohlomi Mahlelebe, says.
“There is a lot of incompetency within government in the processing of payments due to lack of oversight personnel within government ministries,” Mr Mahlelebe says.
Attorney Qhalehang Letsika, a prominent lawyer who represents most of the high-profile army suspects, concurres with Mr Mahlelebe.
“My suspicion is that it is the usual inefficiency within the government that has led to the failure to process payments. Even if they are judges, they are still human beings with obligations that require money so it is prudent that the government steps up and ensures they (foreign judges) are paid,” Attorney Letsika said.
When the government brought in the foreign judges, it was partly to ensure the cases were handled by foreigners who were far removed from the polarised political situation in the country and therefore less likely to be biased.
Justice and Correctional Services Minister, Mokhele Moletsane, is one record saying the decision to engage foreign judges was taken to protect local judges from possible victimisation and backlash from trying the “politically sensitive cases”.
Mr Moletsane said while the local judges were competent enough to try the cases, the government and the SADC still felt it necessary to engage foreign judges because the verdicts of the foreign judges were less likely to be viewed as biased.
“It has never been about the incompetency of local judges as the government believes they are capable enough to preside over the cases.
“The government and SADC agreed that due to the nature of the cases which are said to be politically sensitive, it would be best to source foreign judges because local judges are at risk of being victimised for the verdicts they would give for the cases,” Mr Moletsane said.
Attorney Letsika agrees with Mr Moletsane on the need for foreign judges and he is worried that delays in paying the judges could lead to their departure and thus delay the trials of his clients including the likes of Lt-Gen Kamoli who has already spent over two years behind bars at the Maseru Maximum Prison. Lt-Gen Kamoli was arrested and detained in October 2017 in connection with other murder and attempted murder charges including the June 2015 killing of army commander, Lt-Gen Maaparankoe Mahao.
“The three judges were brought with the key factor being that they will administer justice fairly. We are set to start trials next month and we cannot afford to delay due to issues such as non-payment of the foreign judges’ salaries.
“Our clients have been languishing in prison for over two years and their greatest lamentation has always been that they have not been tried within a reasonable time, therefore, if these judges were to abandon the trials due to non-payments, it will be a major setback, thus, affecting the rights of our clients,” Attorney Letsika said of Lt-Gen Kamoli and other detained soldiers.
The bungling and inefficiency of the government could have far-reaching consequences not just for Attorney Letsika’s clients but for Lesotho’s international standing too.
“If the judges leave, it will mean that we are not a serious nation that cannot account for donor-funded projects. The development partners will be reluctant to help the country in future if this habit persists,” Attorney Letsika said.
NUL academic, Mr Mahlelebe said the withdrawal of the foreign judges and the resultant failure to try Lt-Gen Kamoli and others “threatened the support Lesotho gets from international partners such as America which threatened to withdraw the (multi-million dollar) Millennium Challenge Corporation (development funding) if the concerned people were not prosecuted”.
“The development partners also availed funds to ensure that the cases proceed in order for the rule of law to prevail in Lesotho. I am worried that if the government does not pay the judges and they leave, that will affect Lesotho’s relations with other countries.
“People have lost trust in our judicial system, accusing local judges of bias. The cases which the foreign judges were specifically brought for involve politicians and high profile security agents and if the judges leave, that will cripple their prosecution. We have to bear in mind that the accused have already spent more than two years in prison without being prosecuted. It will further increase the already existing huge backlog, therefore, it is important for government to act immediately in processing the payments of the judges,” Mr Mahlelebe said.
Another NUL political science lecturer, Tlohang Letsie, said Lesotho requested the foreign judges “because it saw the need for impartiality and if they (foreign judges) leave because of unnecessary things like non-payment, this means the danger the country was trying to avoid will return”.
“Government must do everything in its power to keep the judges who came as a result of agreements between Lesotho and their home countries. If they leave, that will reflect badly on Lesotho,” Dr Letsie said.
These are very serious reasons why Dr Thabane must intervene to ensure the foreign judges get on with the job. But if Dr Thabane needs another reason, it would be to rescue his image and legacy that has taken a serious battering due to the multi-faceted political and socio-economic crisis currently bedeviling his two year-old administration.
According to Dr Mahao Mahao, a NUL lecturer in the department of education, “the judiciary is a major pillar in any democracy and any negative stories surrounding it would be unhelpful to Lesotho if it wants to project itself as an exemplary democracy”.
“Besides, there have been too many negative stories of protests (by civil servants and other workers) and general unhappiness among the population over the government’s handling of various issues. If the foreign judges’ salaries saga is added onto the list of the government’s shortcomings, it will become a total mess where the government is seen as one huge calamity presided over by clueless people.
“In the final analysis, these issues will tarnish Thabane’s legacy and he will go down in history as a massive failure of unprecedented proportions. The sad part is that Thabane’s legacy of failure will by extension, become the legacy of everybody else in his government. They will all be painted with the same brush because although there is one prime minister, government is not a one man show,” Dr Mahao said.
Lt-Gen Kamoli’s case has since been postponed to January 2020 and Dr Thabane could use the intervening period to address the foreign judges’ salaries issue.
When all is said and done, Dr Thabane has to act now because his government cannot afford the loss of confidence on the judiciary and the collapse of the rule of law this would entail. His government is already reeling from political and socio-economic crises. It cannot afford the further stain of a judicial crisis on its already difficult tenure.
