Home Scrutator Who will guard the guards?

Who will guard the guards?

by Lesotho Times

STRANGE things routinely occur in this majestic kingdom of His Majesty. Two recent incidents have particularly caught Scrutator’s eye.

Two army officers, who were supposed to be very serious on duty or at least look serious at the guardhouse at Makoanyane Barracks in Maseru, were recently “attacked” by unknown assailants who made off with their rifles and live ammunition, among other items.

Following the attack, the Lesotho Defence Force (LDF)’s Public Affairs Officer, Lieutenant Kelebone Mothibi, told the Lesotho Times that the LDF would not hesitate to take “stern measures” against rogue soldiers and civilians who steal weapons and threaten the country’s security.

“The two officers are still in the LDF military police’s custody pending investigations to find out if they were part of the crime. It is standard practice (to detain army officers who are on duty) when a crime happens. Legal action will be taken against them if they are suspected to have been part of the crime. But they will be released if they were not involved in the crime. The LDF command will not harbour criminals in the army….,” Mr Mothibi said.

It should worry every Mosotho when soldiers, who are supposed to be the custodians of our entire armoury and security, get robbed while on duty. Moreso, because this is not the first time our soldiers are claiming to have been robbed of guns and other equipment while on duty. It has happened numerous times before. This is a trend that cannot simply be allowed to continue seeing that Lesotho is slowly becoming the murder capital of southern Africa.

How on this earth can two heavily armed men, guarding military barracks get robbed? I find that to be almost incredible? The guardhouse at Makoanyane Barracks is strategically located for whoever is on duty to see any danger coming.  Why did these soldiers not see danger coming and fire and kill the assailants?

Furthermore, even Al Capone and his fellow gangsters would not be so daring as to rob military barracks. It is a risky undertaking?  It’s like trying to remove Satan’s canines. It’s impossible. But assuming they were robbed, what would these two soldiers have been doing in that guardhouse? Are they tharasi (gay).

Where they mating? I just cannot find any justification for their behaviour.  LDF soldiers must stop this business of stage managing robberies. In light of the ever escalating violent crimes in the country, we just cannot afford more illicitly gotten weapons onto the crime market. The danger with LDF weapons is that they are more lethal and dangerous than those sold to ordinary civilians.   We simply cannot afford to have such heavy weaponry getting into the hands of criminals.

So the move by the LDF to arrest these soldiers as the first suspects in their own robbery is quite commendable? They must tell us who they gave these weapons to? The LDF must introduce a mandatory rule that any soldier who claims to have been robbed of weapons is automatically guilty until they prove themselves innocent. Otherwise who will guard the guards?

A more or less conundrum also applies to our rapidly diminishing judiciary. Acting chief justice ‘Maseforo Mahase has been doing all in her power to trash the reputation of the judiciary. Had it not been for the valiant efforts of our indigenous mulungu, the 100 percent decent and wholly incorruptible Ntate Mosito, our judiciary would already be with the greyhounds. Some would say it is already there.

When you are a judge and you have an entire court of appeal flagging you to not ever sit to hear cases involving a particular group of people, then you must know that you are really bad. That heavy indictment alone, from Judge Mosito and his colleagues, should have been reason enough for Mme Mahase to quit her position and safeguard the reputation of the bench.

She need not even wait for Lebohang Hlaele’s bid to impeach her to succeed or fail. But expecting her to do so is akin to squeezing orange juice from a stone. So she will fight on. But her unlapsing desire to be appointed chief justice at all costs has now assumed new bizarre proportions.

In her bid to ward off Ntate Hlaele’s impeachment bid against her, Mme Mahase has now gotten the Judicial Service Commission (JSC) to pass a resolution that the JSC does not have the jurisdiction to discipline her and all other judges.

What judicial bunkum is all this?  What is more sad is that Ntate Haae Phofolo, our highly esteemed attorney general is now being made part of this judicial hokum and claptrap.

The JSC passed this nonsensical resolution at its 10 October 2019 meeting. It reportedly asked Ntate Phoofolo to prepare a defence outline to argue that Mr Hlaele’s application to have the JSC originate processes to impeach Justice Mahase should be thrown out on the grounds that the JSC does not have the jurisdiction to discipline her and other judges.

Ntate Phoofolo is better warned to avoid dragging his name through the mud to save Mme Mahase.  He surely should avoid being implored to make an ass of himself, for his own sake and for the sake of the venerable office he occupies, by even considering filing any papers based on the resolutions of the 10 October 2009 meeting of the JSC.

The point has already been made by many an enlightened legal expert that the 10 October 2019 meeting was illegitimate because it was chaired by Judge Mahase herself, the subject of Ntate Hlaele’s impeachment bid.

But the story does not end there.

It is a venerable role of JSCs the world over, excluding banana republics of course, to regulate judiciaries. South Africa next door is a good example. No judge is appointed without undergoing a vigorous JSC interview. In fact, President Ramaphosa, or any sitting president for that matter, will only appoint judges from a list submitted by the JSC. South Africa’s JSC Act does not give the South African president any leeway to appoint judges from the ranks of friends with whom he grew raising goats. Any impeachment of a judge or discipline of a judge is the prerogative of the JSC.

South African presidents can only recommend a nominee (s) for appointment to the office of chief justice. But even after a South African president has nominated a sole nominee for appointment as chief justice, that nominee is subjected to a rigorous JSC interview, after which JSC commissioners vote to either confirm or reject the president’s recommendation.

Indeed, the dancing, singing, giggling and philandering Jacob Zuma, tried to abuse presidential power to bypass the widely acclaimed Dikgang Mosoneke for appointment as chief justice in favour of the then little known Mogoeng Mogoeng. The latter was grilled by the JSC. He still won the recommendation to be appointed chief justice.

To his huge credit, Justice Mogoeng Mogoeng, who had been widely condemned as a probable Gupta deployee, acquitted himself well on the bench once he had assumed office as chief justice.  He found the very giggling Zuma, who had hoped to use him as poodle, guilty of breaching the constitution in the now famous Nkandla case. Surprisingly, pliant ANC MPs did not impeach Zuma, maybe because they are overly impressed by his dancing skills.

I have previously implored Justice Mahase to try and emulate Ntate Mogoeng’s good example. Ntate Mogoeng is the best example that judges must never pander to politicians.  Politicians come and go (In Lesotho every two years).  Basotho love changing their politicians as often as diapers.  But judges have security of tenure.  Judge Mahase will still be a judge long after Ntate Motsoahae is gone. He may also still be judge long after Ntate Mahao or Mokhothu have come and gone as prime ministers. Or even still Ntate Majoro has come and gone. Protection of her reputation must thus be of paramount concern. If she elects to do the bidding for a faction or for any politician, she must know she will be impeached anyway long after whoever she was trying to please has gone. But that’s all digressing.

The South African JSC is an excellent example of how any JSC must behave.  Take for instance the example of Judge Nkola Motata.

Motata is the South African white haired judge who infamously embarrassed the South African judiciary after he was enmeshed in a nasty car crash incident in 2007.  He drove into someone’s durawall after he had one too many.

Instead of apologizing, Motata engaged in the most despicable behaviour akin to going on top of his car and barring his buttocks, to the very family he whose durawall he had smashed, before passing wind on them. He went on a racist tirade against the family telling them that white people were no longer anything in the new South Africa.

“No boer is going to undermine me … this used to be a white man’s land, even if you (white people) still have more land … South Africa belongs to us (blacks). We are ruling South Africa…” opined the drunk judge.

Now tell me, how can any white person confidently appear before a judge who has uttered such words and expect to get justice? It’s like expecting Nqosa Mahao to get justice before Mme Mahase. It just won’t happen. Even if Mahao was accused and convicted of stealing a loaf of bread and piece of polony in Pick n Pay, Judge Mahase would ensure Ntate Mahao is sentenced to death. She would then go to the jail to ensure that Ntate Mahao is actually hanged.

Judge Motata was subsequently found guilty of drunk driving by the Gauteng High Court in 2009 and fined R20 000.

The South African JSC hauled him before its disciplinary tribunal and recommended his impeachment from the bench. However, in its final judgment last week, the JSC showed the drunk judge a bit of mercy. Instead of full impeachment as recommended by its disciplinary tribunal, the JSC fined Judge Motata about M1,2 million or the equivalent of 12 months of his current salary. The fine would be paid to the South African Judicial Education Institute which trains judicial officers.

Impeachment would have ensured that the old codger judge, would had already left the bench after reaching compulsory retirement age, would have been forced to forfeit  his salary and benefits. Judges get their full salaries and benefits, even after retiring, until they die. In South Africa, judges’ wives (not concubines) continue getting paid even after their husbands (the judges) have died. Cushy perks!!!

The Motata case exemplifies what is expected of any serious JSC.

Lesotho’s Judicial Service Commission Act No. 7 OF 1983 specifically empowers our JSC “to advise the Prime Minister on all matters relating to the appointment, discipline and removal from office of judicial officers to whom this Act applies ­ and to deal with matters incidental thereto.”

Section 5 (2) of JSC Act No. 7 of 1983 does not specifically mention judges, among those that the JSC can recommend for discipline. It only mentions  (a) Registrar or Assistant Registrar of the Court of Appeal, (b) Registrar or Assistant Registrar of the High Court, (c) Magistrate, (d), Judicial Commissioner; and (e) such other officers as may be prescribed by the Minister by notice in the Gazette. It is nonetheless the height of folly for anyone to want to believe that judges and the chief justice are totally excluded from the reach of this law. Any purposive and contextual interpretation of the law in fact confirms that judges are the primary targets of this law.

Which explains why Mme Majara herself was eager to want to discipline her colleagues, Tšeliso Monaphathi and Keketso Moahloli, for allegedly spending an inordinate amount of time at Ulala munching pork and lamb chops — with a tinge of Johnnie Walker — instead of writing judgments.

In her court application for an order for the recusal of all her colleagues from hearing Ntate Hlaele’s impeachment case against her, Judge Mahase takes aim at Judge Thamsanqa Nomngcongo, whom he also cites for not delivering judgments timeously. She said she was on the verge of recommending that the JSC conducts a hearing against Justice Nomngcongo.

“As Acting Chief Justice, I am the chairperson of the JSC and as such, I have to deal with numerous complaints from members of the public about judges of the High Court. I also, in that capacity in the JSC, have (a) mandate, together with other members, to also deal with the discipline of some of my colleagues who are currently presiding over this (my case) case.

“Obviously, whatever negative or adverse decision the JSC may come to in the future, the concerned judge may feel that the JSC may have been adversely influenced by the chairperson because that particular judge may have presided over this matter. Consequently, I aver that this is a case where all judges of the High Court bench have to recuse themselves so that aspersions are not cast in the future.”

So what has since changed after this very articulate acceptance of the role of the JSC as overseer of judges.

If it is right for Mme Mahase to want to use the JSC to censor judges Monaphathi, Moahloli and Nomngcongo, why should the JSC suddenly have no power of recommending disciplinary measures (including impeachment) when it comes to her own case. Is this not a classic example of hypocrisy, narcissism and even bigotry.

If the JSC abdicates on its role of overseeing the conduct of judicial officers, including judges, who will assume this role.  Will they leave this role to Ntate Motsoahae alone? Or do they want it given to Kamoli? Or even Ramatsella. If so release Kamoli forthwith and let him be new regulator of judges’ conduct. He can then be given an axe to discipline those judges who fall into the wrong lane of indiscipline.

Judges should be the leading advocates of their own self-regulation if the doctrine of separation of powers is to be given any meaning.

An argument that can be made against Lesotho’s JSC Act is that it is too mild and overly weak if not wholly useless in terms of entrenching the separation of powers doctrine.

None other than Judge Semano Peete has recommended that the JSC be strengthened to oversee a public process for the recruitment of judges, to the exclusion of politicians, as well as to run the judiciary (South African style).  I would not agree more.

If the JSC abdicates on its role to oversee the behaviour of the judges, again the question asked earlier with respect to the two LDF weapon thieves arises; who will guard the guards? Since judges are supposed to be guardians of the law, who will guard the judges? If the judges are happy to create a lacuna by weakening the already emaciated JSC and leaving this job to politicians, then cry this beloved Kingdom.


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