Scandal? What scandal?

Scandal? What scandal?

MASERU – JUSTICE Minister Mokhele Moletsane says there is nothing amiss about Chief Justice Nthomeng Majara’s suspension. Moletsane said the decision is based on section 121 (3) of the constitution which says a judge “may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for behaviour…”

He said the government felt that Justice Majara was not able to perform the functions of her office when she is conflicted by her case against the prime minister. “She is supposed to have appointed judges and allocate duties but surely she cannot appoint judges to preside over her own case because that will be a conflict of interest,” Moletsane said
He said although some might view section 121 (3) as dealing with the removal of judges who are incapacitated the government believes that it also applies to Justice Majara’s case because her potential conflict of interest in the appointment of judges is obvious.

“That means she cannot perform a function in which she is a litigant.” Moletsane also said government agonized over the decision and “widely consulted with senior lawyers, locally and regionally, before making the decision”. He said the government was aware that section 121 (3) says the prime minister has to consult the chief justice before suspending her for inability to perform her duties. This week, we spoke to the minister who is in South Korea for business, about the issue surrounding the chief justice:

There is an allegation Chief Justice Nthomeng Majara’s suspension violates two court orders against the government.

Those orders say we should not make a decision on her position. We haven’t made a decision. She remains the chief justice of Lesotho. The motive behind the decision is that she is unable to perform her duties.  One of her main roles is to allocate cases to judges. As chief justice, she could not appoint judges to a case in which she is a litigant. You are aware that she has a case in which she is challenging the prime minister’s authority to advise the King to appoint a tribunal to investigate her conduct as a judge.

As government, we felt that her position had become untenable because of that case. That means she was now unable to perform her duties as chief justice.

But some might ask why the government could not have just asked her to recuse herself from any activity related to her case.

It should be clear that government has not removed the chief justice. She is just suspended for the purpose of her own case. She remains the chief justice. I frankly don’t understand how she could have been ordered not to exercise her duties and powers on certain matters and not the others.
At law, you cannot suspend other duties and leave the others when dealing with the same office and the same person.

But the point remains that there are orders interdicting government and the prime minister from suspending her.
We respect the court process. If she is aggrieved by that suspension, she can still challenge the decision. If they feel that the court orders have been violated they can still approach the courts.
I cannot understand why they say we have violated court orders when we still have not appointed a tribunal to investigate her conduct. This decision was made after wide consultations. What we have is a common ground reached after long discussions. Suspension does not mean that she is not the chief justice. It’s a simple procedural issue.

Was the chief justice consulted?

That is precisely what we did. There was a meeting in which she was consulted by the prime minister. I was also in that meeting. Unfortunately, I cannot reveal the details of that meeting because that will not be ethical. The point, however, remains that she was consulted.
The order we sought was to avoid anarchy because the chief justice was threatening to ignore the suspension. Ideally, she should have voluntarily made way to allow the process to unfold but she didn’t.
Acting Chief Justice ‘Maseforo Mahase is the one who heard the government’s application over the weekend. Don’t you find it wrong that she presided over a case in which she has a direct interest?

As government, we don’t decide the judges who hear our cases. But if the lawyers feel that the judge should not have heard the application for whatever reason then they are free to ask her to recuse herself. It is a matter that can be put before the court to decide. We don’t have the powers to decide which judge deals with which case.

Will the government respect a judgement that favours the chief justice in the case in which she is trying to block the prime minister from advising the King to establish a tribunal for her impeachment?

First, no appointment has been made to the tribunal and none will be made until her case is finalized. We will wait to see how the court will decide. If the court rules in her favour then we will respect that decision.  If it’s against her, we will go ahead with the tribunal. But we must not forget that even at the tribunal she can defend herself. She has that right. We believe we have a case against her and she believes there is no case against her. The final decision belongs to the tribunal.

Staff Reporter

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