JSC in legal jam

JSC in legal jam

MASERU-THE Judicial Service Commission (JSC) could be in a legal jam after His Majesty King Letsie III allegedly rejected its recommendation to appoint the five new judges.
The king is said to have refused to appoint the judges because they were recommended by only two of the four members of the JSC bench.

The decision was made by Attorney General Haae Phoofolo and Acting Chief Justice ’Maseforo Mahase at the JSC meeting two weeks ago.
The other two members who are the Public Service Commission (PSC) chairman, Sehooho Moshoeshoe, and a High Court Justice Judge Sakoane Sakoane did not attend the meeting.

Advocate Phoofolo and Justice Mahase recommended the Deputy Attorney General Tšebang Putsoane, lawyers, Mokhele Matsau, Maliepollo Makhetha, Moneuoa Kopo and Tšabo Matooane.
The decision triggered an outcry from Justice Minister Professor Nqosa Mahao who described it as secretive, unlawful and politically motivated.
Prof Mahao said Advocate Phoofolo and Justice Mahase did not constitute a majority of the JSC and therefore lacked the authority to recommend candidates to the King. He said he was not consulted.

But Advocate ’Mathato Sekoai, the Registrar of the High Court who is also the JSC’s secretary, retorted that the commission was not obliged to consult the minister.
Advocate Sekoai also rejected the argument that the recommendations were unconstitutional.

Sekoai’s pushback came amid a public backlash with the legal fraternity also condemning the decision.
The cabinet is also said to be equally annoyed with the JSC.
Now the King’s reluctance to appoint the five judges has put the JSC in a quandary.

The commission faces several challenges as it seeks to address His Majesty’s concerns.
The first is whether those whose recommendation has been rejected should be considered again. The second is whether those who had not been recommended in the first sitting will be included in the selection.
In both scenarios the role of Advocate Phoofolo and Justice Mahase will be on the spotlight.

Will they be asked to recuse themselves given that their preferences are already known?
Even if they participate in the decision will they agree with an outcome that rejects their preferred candidates?

There is also the question of how the new process will be viewed by all the candidates.
Those questions are already being asked by one of the two JSC members who were not in the first meeting.
He told thepost that he doubts the five candidates should be considered “since they were selected through a dubious process already tainted by allegations of irregularity, secrecy and favouritism”.

“It is already clear that those five were preferred by the two members who recommended them. It cannot therefore be fair that those two members participate in another meeting where the same people are considered,” he said.
“There is also a possibility that some of the candidates who were not selected in the first sitting might challenge the participation of those two members who did not select them.”

“It cuts both ways because even those five might cry foul if they don’t make it. It’s about perception. Their names have already been made public and any decision to reverse their recommendations might give an impression that they were incompetent beneficiaries of a flawed selection.”
thepost can reveal that in addition to its demand to be consulted the government prefers that the JSC accepts more CVs to broaden the pool.
But Justice Mahase, who is the chairperson of the commission, could see this as undue interference from the executive. She is likely to insist on the separation of powers between the executive and the judiciary.

Her frosty relationship with Prof Mahao further complicates matters.
Prof Mahao was been at the receiving end of Justice Mahase’s controversial judgements in the court battles for the control of the All Basotho Convention (ABC) party.

There is a perception that the judge was fighting in former Prime Minister Thomas Thabane’s corner during the bruising battle for the control of the ABC.
Justice Mahase, on the other hand, believes Prof Mahao is out to get her for ruling against him.
The appointment of judges appears to be a new battleground for the warring factions within the ABC.

A prominent lawyer told thepost that the “real issue is not about the process of appointing the judges but who gets appointed”.
“The judiciary is caught up in a political battle. Whoever has their judges on the bench will have the upper hand in the battles that will soon ensue in the ABC,” the lawyer said.

The lawyer predicted a legal battle brewing over the appointments.
“While it might be true that the JSC’s decision was controversial, the other question is whether His Majesty can reject the commission’s recommendations. The constitution is silent on that issue.”
“That question might have to be answered by the courts. Our jurisprudence is just about to expand. The issues are whether the JSC was right to make the recommendations in that manner and whether the King can reject the commission’s preferred candidates.”

On Tuesday Sekoai said Prof Mahao did not officially complain about the JSC’s decision.
“Despite what the minister said in public the JSC has not received a letter from him officially stating his reservations about the decision,” Sekoai said.
“Thus far my response as the secretary of the JSC has been based on what journalists asked me about the process and what the minister said at the press statement. There is no official communication from the minister.”

Staff Reporter

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