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Underfunding has created a dire situation in the judiciary: Phoofolo

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It has been two months since former Attorney General, Advocate Haae Phoofolo (KC), left his post after the expiry of his contract at the end of February 2021. Prime Minister Moeketsi Majoro had attempted to fast-track Adv Phoofolo’s departure by sending him on terminal leave on 14 September 2020. The premier had said it was necessary for Adv Phoofolo to immediately go on leave to facilitate the search for his successor ahead of the expiry of his contract in February 2021. Not satisfied with the move, Adv Phoofolo successfully petitioned the High Court which, in November 2020, nullified Dr Majoro’s decision to effectively fire him by sending him on forced leave pending the expiry of his contract.

This week, the Lesotho Times’ Senior Reporter Mohalenyane Phakela caught up with Adv Phoofolo to find out what he has been up to. In the interview below, Adv Phoofolo also reminisces on his long service in the legal profession and speaks on his expectations as the country embarks on judicial and other reforms which were recommended by SADC in 2016.

 LT: It’s been two months since you left the post of Attorney General. What have you been up to? Is there any chance of you returning to private practice? 

Adv Phoofolo: The practice of the law is not just work but it is a lifestyle. I am not sure whether such a lifestyle would be accommodated by my waning health and age. I practiced law for no less than 20 years after a few years in the government bureaucracy.

I am turning 74 years old in a few months. I have several grandchildren now and I have trained and mentored a number of prominent lawyers in the country. I cannot help but beat my chest over the significant strides which some of the lawyers I have trained and mentored have made in the development of the law in this country. The practice of the law requires a strong mental and physical acumen and I am yet to consider whether to re-engage on a sporadic basis so that my sanity remains above-board. 

LT: Your contract was due to expire in February this year but we saw efforts by the Prime Minister Moeketsi Majoro to get rid of you before that date. Do you think Prime Minister Majoro handled the issue well in view of the fact that he attempted to get rid of you when your contract was about to expire and also in view of your long service to government and the legal profession?

Adv Phoofolo: In the first place, the Prime Minister did not make an effort to get rid of me. It would be a complete mischaracterisation of the issue and I want us to be careful to avoid sensationalism.

The government decided to prematurely facilitate my exit from office and the reasons were stated. Among other things, the government was going through the reforms process which was a long-term venture which required fresh brains and I was not adequately equipped to play a part owing to my age and my contract was due to expire in a few weeks if not months.

I was then placed on leave pending expiry of my contract and at the initial stages I yielded to the decision because I sensed an element of rationality in the decision. I explored litigation in retrospect and after a deep sense of thought because of the potential effect the move would have on the office of the attorney general. I realised it would build a wrong and dangerous precedent for future governments and would expose the office to potential abuse by the executive. Seduction out of office is as dangerous as seduction into public office. The office of the attorney general is deliberately designed to be functionally and institutionally autonomous and the removal from office must be in line with the prescripts of the law and if outside the scope of the law then it becomes illegal if not unconstitutional. At face value, it may have come across as pyrrhic victory because I was back in office only for a month but in reality, it was and is a victory for the rule of law and proper governance.

LT: What do you think was behind the prime minister’s move to push you out prematurely? How would you describe your relations with the Prime Minister and the Justice Minister Professor Mahao during your time as Attorney General?

 Adv Phoofolo: Let us for one moment avoid discussing this issue in terms of personalities but in terms of institutional imperatives. The Prime Minister is the head of government and his actions are reflective of the government that he leads not his personal ones.

The same applies with Minister of Justice and Law. The issues had nothing to do with personalities but with institutional imperatives. Both the Prime Minister and Minister of Justice and Law were part of the government that decided to facilitate my compulsory leave pending retirement or expiry of my contract.

 

As I have stated, the move may have been a rational and well-considered one – I was 73 years old and I am not growing any younger even as I speak now. When I assumed office, I was ten years a senior of my predecessor (Tsokolo Makhethe) and he was compulsorily retired upon attainment of 60 years of age.

My assumption of duty attracted a sound debate of whether it was a sound decision to retire a man at the age of 60 and substitute him with a man who is ten years older. It was a reasonable argument.

But the issues that the government faced were very dynamic and the country had gone through a turbulent phase of two coalition governments which had collapsed under very challenging circumstances so the assumption of critical public offices was motivated by policy considerations than many other reasons.

You will realise that the National Assembly was also led by a very senior politician as well – Prime Minister Thomas Thabane himself was not an exception. There were considerations which were instrumental in the decision and they were well-considered. Experience and age were vital tools necessary to steady the ship given the turbulent phase that we had experienced as a country. Young people tend to be driven by ambition and it often blinds their vision. An ambitious man or woman can be dangerous in a public policy environment. But when you are much older, you tend to be worried about your legacy and its impact on your country above all else because your time is nearing the end.

 LT: Do you enjoy good relations now with Dr Majoro?

 Adv Phoofolo: As a public officer, the need for good personal relations is not as important as the need for a healthy professional relationship.

We work for the government of the Kingdom of Lesotho and we need not be friends to get our job done. We need to be guided by the professional ethics and to navigate around leading the country in the right direction.

It is not a gentleman’s club and it would be wrong if the public servants and politicians who are part of the establishment would see it in that context. There must be robust debates and exchange of ideas and all of them may attract difference of opinion. I imagine it is safe to state that I enjoy a healthy professional relationship – that is as good as it can get and I am comfortable with it that way.

LT: What challenges did you note in the administration of justice and what would you want to see reformed under the ongoing judicial reforms?

 Adv Phoofolo: The real challenges facing the country in the administration of justice which must be prioritised are the following: The government must adequately fund the law enforcement institutions. The Lesotho Mounted Police Service (LMPS) must be adequately funded in order to carry out their mandate of investigating criminal activities.

The judiciary must be adequately funded as well. If you were to look at the environment in which local court presidents and judicial officers both in Basotho customary courts and civil courts are operating you will realize how dire the situation is.

 

There is a great deal of disillusionment and the morale is waning by the day. You go to the magistrates’ courts and the High Court and explore the infrastructure that they are operating in you will be left in dismay.

You cannot have a fully functional and thriving economy if the administration of justice is in disarray. The lawyers in the public service are also disillusioned because they are inadequately capacitated to respond to the dynamic needs of an ever-changing legal environment. I think these are priority areas which must be explored.

LT: What’s your take on Justice Sakoane being made Chief Justice, how do you think he is holding up so far? The judiciary has advertised for applications from prospective appointees as judges? Do you think that is the right step and if yes, how will it help the judiciary?

 Adv Phoofolo: I have a personal relationship with the Chief Justice that dates back to many years. He is from the same neighborhood as myself. He is from the district of Berea and so am I. I have known him to be an erudite scholar. Highly principled and with an austere sense of humour at times but highly assertive. He has brought several important developments in the judiciary.

 

He has effectively raised the standards and I am impressed. I learnt and observed the practice directives that he developed which refined the manner with which practitioners prepare their cases before courts. I have also observed that he has also standardised the manner in which judgements of the High Court ought to be framed.

These are significant strides and I am watching with keen interest and enthusiasm how he sketches his vision for the judiciary. He will need innovative colleagues to support him in the exercise and I am confident that he will be up to the task.

He has created a platform for merit-based appointment of puisne judges and I am very much impressed with how he has navigated around it. I am quite certain that the merit-based appointments will be useful in the improvement of standards. We need competent puisne judges with sound professional credentials and I am very much optimistic that this route may be of use to us as a country especially when going through the phase of national reforms.

LT: Do you think appointment of other government top posts should also be publicised, for instance the appointment of your successor?  

Adv Phoofolo: The approach is a good one but we must avoid a blanket approach because the government bureaucracy is a complex environment as opposed to the corporate sector. There are policy considerations to be made and such considerations do not require a formalistic and or scientific approaches when appointing persons for senior government top posts.

There are many intelligent and competent persons whose credentials speak for themselves but whose temperament and outlook would not be appropriate for the government bureaucracy. Some people are better-suited as business persons and technicians in the corporate sector not in the government bureaucracy. There must be room for appointing authorities in the government bureaucracy to appoint people of their choice who will be in a position to advance the policies of the government in office.

 

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