Legal brawl looms over new judges

Legal brawl looms over new judges

MASERU-A legal battle is brewing after the Judicial Service Commission (JSC) allegedly cut corners and recommended five people for appointment as judges.

Law Minister, Professor Nqosa Mahao, says the government will change the decision because it is “patently unconstitutional”.
What has irked the minister is that only two of the four JSC members recommended the five candidates to the King.

It appears that Attorney General Haae Phoofolo and Acting Chief Justice Maseforo Mahase were present in the meeting. The other two who are the Chairman of the Public Service Commission Sehooho Moshoeshoe and Justice Sakoane Sakoane did not attend the meeting.
The five candidates were selected from a list of eight Curriculum Vitaes. No one knows how the shortlist was compiled or who handpicked the candidates.

Their names have been kept under wraps since the recommendations were made last Thursday.
thepost has withheld the names because they could not be conclusively verified at the time of going to print last night.

It appears that among them is a senior official in the Attorney General’s office, an advocate working at the Lesotho Revenue Authority, a senior Mosotho lawyer working in South Africa as well as two practising lawyers.
One of the lawyers is said to be operating from an office at Hopolang Building in Maseru while the other works from downtown.
The name of another lawyer working in Swaziland has also been mentioned.

Last night High Court Registrar, ’Mathato Sekoai, who had been mentioned, vociferously denied being a candidate.
Speaking as the JSC’s secretary, Sekoai refused to reveal the names. She however insisted that the decision was constitutionally correct.
Sekoai said the constitution explicitly states that there should be no political influence in appointment of judges.

To explain why only two of the four JSC members made the decision, she quotes section 132 (10) of the constitution.
That section says “The Commission may, subject to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of any member, and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings: Provided that any decision of the Commission shall require the concurrence of a majority of all the members thereof”.

This, Sekaoi said, means that the Attorney General and the Acting Chief Justice formed a quorum and had the power to make the appointment.
But Professor Mahao said Sekoai is misreading that section to justify an illegal decision. He said the registrar has been quoting the first part of the clause and leaving out the proviso that said “provided that any decision of the Commission shall require the concurrence of a majority of all the members thereof.”

“The defining part of the section talks about the majority. It is clear that only two out of four JSC members made the decision. Two cannot be a majority of four,” Professor Mahao said last night.
“She reads the same section but stops before getting to the proviso. That is fraudulent because the people will think you know (what you are talking about) but you would have defrauded them.”

On Tuesday Professor Mahao described the decision as “politically motivated”.
“It’s so surprising for two people to appoint judges, it’s simply conflict of interest,” he said.
“Even up to date, the Attorney General has never said anything to me but we do still meet,” he said.

‘‘To my knowledge, judges have to be appointed based on their talents and experience, their names have to be known, and interviews have to be conducted,” he said.
“This thing that they did was never blessed by the government and we are hoping to solve this problem soon.”

He said they did not know the procedure which Justice Mahase and Advocate Phoofolo took when appointing the judges.
“The judicial institution is unstable and it is politically influenced,” the minister said.
“We have seen a lot of politics taking place in court. For example, former Chief Justice Nthomeng Majara was removed; they even wanted to remove the President of the Court of Appeal.”

But Sekoai is sticking to her guns, insisting there is no constitutional provision for the JSC to consult the Minister of Law. She also dismissed the minister’s allegations of political influence.
“One could say the fact that the decision was confined to the JSC means that it was insulated from political influence.”

In the meantime, details of how only two JSC members made the decision are beginning to emerge.
Last night Sehooho, the Public Service Commission chairman who did not attend the meeting, described the decision and the nomination as curious.
Moshoeshoe said a few days before the meeting he asked about the list of candidates but the Registrar kept telling him that she was still photocopying the documents.

“What happened in this case is not the normal practice. We normally get the agenda and the supporting documents a day before the meeting. That did not happen in this case despite repeatedly asking the Registrar,” Moshoeshoe said.

“I decided not to attend the meeting because I didn’t get documents relating to the agenda, particularly the list of the candidates and their CVs.”
Moshoeshoe said it is unprecedented that two JSC members can appoint judges on their own.
“We have agreed and it has always been our practice that when it comes to sensitive issues like the appointment of judges all the JSC members should be present.”

“We have done that in previous appointments including that of foreign judges. We always get their names and CVs a day before the meeting. I don’t know why it was not done this time.”

“I thought we would see the supporting documents days before the meeting so that we could apply our mind and make informed decisions. We waited for the full package but it never came,” Moshoeshoe said.
The judiciary has always been drawn into the political turf wars.
The latest fight appears to well from the fact that both the Attorney General and Acting Chief Justice are seen as politically compromised.
Justice Mahase has been accused of fighting in former Prime Minister Thomas Thabane’s corner.

She made highly questionable rulings in Thabane’s favour during his fight with Professor Mahao over the control of the All Basotho Convention (ABC).
Those decisions were quashed and roundly criticised by the Court of Appeal. Later her decision to grant bail to Thabane’s wife was also reversed by the same court which also censured her for the hasty manner she made the ruling.

Thabane also fought but lost the battle to confirm Justice Mahase as the substantive Chief Justice.
Her husband is also close friends with Thabane.
Advocate Phoofolo is a former ABC MP and was seen as close to Thabane. Some of his legal advice has been seen as highly influenced by his connection to Thabane.

Sources in the ABC told thepost that the appointment of judges has been caught up in the factional fights within the ABC.
“This is about power and control. Whoever controls the judiciary is in charge,” said a highly placed source within the ABC.

“Some see Thabane’s hand in all this. Remember he and his wife face murder charges. The battle is now in the judiciary.”

Itumeleng Khoete

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