Deeply ‘in love’ with law

Deeply ‘in love’ with law

MASERU – TEKANE Maqakachane, 42, fell in love with law while he was working as a court interpreter at the High Court.
It was a case of “love at first sight”.
A man with a voracious appetite for reading, Maqakachane would devour the law reports and judgments by judges.
As he read, he was blown away by the elegance of the judges’ arguments. And from that moment he knew he was destined for law.

The judgments mostly dealt with the then turbulent political climate and the human rights violations that took place in Lesotho from the 1960s to the 1980s.
What impressed him most was that the judges “would use principles of law to resolve disputes and did not rely on how they felt personally”.
“The logic in the presentations and the application of the law was a marvel. I wanted to get to know these principles and apply them to resolve disputes. I knew this was the route that I must take,” he says.

Maqakachane was no lousy interpreter. A Mosotho who takes pride in the beauty of his Sesotho mother language, Maqakachane excelled as an interpreter in the courts.
His seniors within the legal profession, perhaps seeing his sharp intellect, advised him never to be content with just being an interpreter. They told him to dream higher.
He credits the likes of Justice Tšeliso Monaphathi, the late Justice Gabriel Mofolo, former Chief Justice Mahapela Lehohla and the former Director of Public Prosecution Leaba Thetsane among people who advised him to “go and study law”.

And so in 2002 when he was at the ripe age of 26, Maqakachane belatedly walked into the gates of the National University of Lesotho (NUL) and enrolled for a law degree.
Maqakachane is currently the President of the Lesotho Law Society.
Maqakachane says while the institutions that support our democracy might not be fragile, he believes they have proven to be woefully inadequate in protecting our democratic space since 1993.
“We are faced with institutional decay and fatigue,” he says.

Maqakachane believes that our courts, the office of the Ombudsman, the human rights commission and Parliament have failed to live up to their mandate and have “become self-serving”.
That has come at a huge cost for Basotho, he says.
He argues that Parliament has proven to be a big letdown over the years as it has historically failed to “hold the executive to account”.
“The problem is that the executive has become so powerful with MPs no longer serving the interests of the people.”

He speaks of MPs who have become far removed from their constituencies and no longer have any connection with the people they are supposed to represent.
Maqakachane says the MPs push their individual interests as exemplified by the M500 000 personal loans they took when they assumed office in 2015.
The government had to write off the loans after the MPs terms were abruptly cut when the coalition government collapsed last year before they could repay them to the banks.
“No one among the MPs is saying, ‘look we can’t be getting these interest-free loans from the national coffers.’ No MP will go against that.”
He says when you compare the amount of per diems MPs and other government officials get on their foreign trips and the appalling state of the High Court, then you will understand “that we have a serious crisis of resource allocation in Lesotho”.

Maqakachane believes these are some of the issues that must be resolved if we are to consolidate our nascent democracy.
And indeed, since independence from the British in 1966, Lesotho has enjoyed rare periods of relative peace.
Four years after independence, the country was plunged into turmoil after a disputed election in 1970. The main opposition Basotho Congress Party (BCP) then launched a small-scale insurrection in the 1970s up to the 1980s that proved largely ineffectual.

Maqakachane says our problems were mainly because “when our colonial masters left in 1966, they left institutions which were not home-grown”.
“They wanted us to follow certain principles which were foreign to us,” he says.
He cites the case of the Constitution that was bequeathed to Lesotho at independence in 1966.

“It required a separation of powers (between the executive and the judiciary) but we never understood it and that is why immediately after independence we began to show some cracks,” he says.
“We made our own choices which ultimately became a fertile ground for the present political disturbances.”
For Maqakachane, Lesotho’s political crisis has its roots in the formative years after independence.
To address these concerns, Maqakachane wants to see “transitional justice” for victims of human rights violations.

The violence that took place during the pre-democratic era (pre-1993) must be investigated, he says.
“Whatever happened then is breeding more violence,” he says. “We all know that violence begets violence. That is why it is critical to take care of this matter through institutional justice.”
He also believes Lesotho is in a mess because of a political leadership that is “intolerant of each other”.
“They can’t sit down and discuss their differences and compromise for the sake of the nation. For them it is a zero sum game.”

The shocking levels of poverty in Lesotho are also to blame for the country’s perennial political challenges.
Maqakachane argues that “when your party is close to the cake there is an inclination among politicians to look after your own belly while forgetting and neglecting the wider national cause”.
“There is greed among the political leadership and they will never have enough,” he says.
The fight for the national cake will always trigger turbulence, he argues.

To address these challenges, Maqakachane is proposing “a new political and social order that responds to good governance”.
“We need a new order that responds to the pressing needs of our people and protect the fundamental rights of the masses of our people so that Basotho can feel safe in their own country,” he says.
The key to achieve this he wants to see some form of transitional justice “which is not just a legislative process where you simply pardon everybody”.
“We will require that the whole of society agrees on the way forward particularly those who are aggrieved and those who perpetrated the rights violations.”
“We need to unravel the truth about what happened.”

But will this approach not open old wounds?
Maqakachane disagrees, arguing that “we cannot start afresh” when a section of society still feels aggrieved.
“You need all these people who are angry. You would even risk the new order being threatened by those aggrieved by past human rights violations.”
As a lawyer, Maqakachane has had the rare privilege of watching from close range the titanic battle between suspended Chief Justice Nthomeng Majara and the coalition government led by Prime Minister Thomas Thabane.

The opposition has accused Thabane of seeking to push out Justice Majara in a naked attempt to capture the judiciary.
The government denies the charge.
Maqakachane argues that the battle between Justice Majara and the government is the most vivid illustration of the structural flaws in the administration of justice in Lesotho.
He says while there should be separation of powers between the executive and the judiciary he senses that the “executive was beginning to play towards the direction of the courts”.
“One can see the strong hand of the Prime Minister in the appointment of the Chief Justice and the President of the Court of Appeal. There are no procedures that the Prime Minister needs to follow to ensure a strong candidate is put in place.”

This would effectively deal with charges that the premier wants to put his own people within the top positions within the judiciary, he says.
“We need clear procedures in the appointment of the Chief Justice and the President of the Court of Appeal. That process must be transparent and credible.”
He believes Lesotho must broaden the membership of the Judicial Services Commission (JSC) to include the opposition, academia, civil society organisations and the government. He says this will allow Basotho to “own the process” and avoid charges that the Premier is manipulating the process for his nefarious agenda.

Quizzed about the ouster of Chief Justice Majara, Maqakachane says he subscribes to the principles of constitutionalism.
“The supreme law directs how judges should be treated and for me the key is whether the Constitution was followed,” he says.
“As long as the Prime Minister was following clear constitutional principles and there are grounds for that, I wouldn’t argue with that.”
He says “whether Justice Majara was unfairly treated or not is not my call to make”.

Anyone aggrieved was free to follow the Constitutional precepts.
Maqakachane however admits that when one steps back and looks at the dispute from a broader context of judicial independence, “one can begin to see traces of the executive still playing on the side of the judiciary”.
That is a deeply worrying trend, he says.

To deal with this problem, Maqakachane wants to see a new model where the appointment of the Chief Justice and the President of the Court of Appeal as well as the rest of the judges being done by the JSC.
“That process must be clear and transparent with procedures that are open to the public.”
Maqakachane was born on January 11, 1976 at Maliba-Matšo Ha-Ntšeli in Leribe.

He is the third born in a family of nine children.
His father, Benjamin Tlali Maqakachane, was a peasant farmer who survived through communal ploughing.

When things got tough financially, he would sell some of his few cattle, an asset that is much treasured among Basotho, to raise fees for the younger Maqakachane.
And that was what happened when Maqakachane was about to write his final Cambridge Overseas School Certificate (COSC) at Sacred Heart High School in 1993.
He sold the family’s very last cow just to ensure his son sat for his exams.

“I was so touched when I saw how my father was sacrificing everything for my sake,” he says.
From then on, Maqakachane saw his father struggle financially as he could no longer plough the fields in a meaningful way.
“It hurt me so much to see how my father sacrificed for my own education in a community that did not think much of education. They thought the best thing to do was to send their sons for initiation to become ‘real’ men.”

And so when his age-mates were furthering their studies at university after Form E, Maqakachane thought he had to find a job and relieve his father of the burden of looking after the family.
“I thought I had gone far enough with my COSC and thought it was time for me to go into the field and work so my parents could get something.”
Maqakachane says if ever there was anything he learnt from his father it was the virtues of hard work.

“As a poor peasant he was able to till the soil and feed his children and other members of the extended family. Those principles of hard work were ingrained within me.”
In 1993, he found a job as an assistant teacher at a primary school in Leribe.
Four years later he moved to Maseru where he worked as a court interpreter.
He was later transferred to Qacha’s Nek.

In 2000, Maqakachane was promoted to Chief Interpreter at the High Court.
He holds a Master’s in Law from the University of Free State.
He also teaches law at the National University of Lesotho on a full-time basis.

Abel Chapatarongo

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