- as explosive fight over judges’ appointments rages on
Mohalenyane Phakela | Pascalinah Kabi
ACTING Chief Justice ‘Maseforo Mahase and the Judicial Service Commission (JSC) secretary, Advocate ‘Mathato Sekoai, have come out guns blazing against Law and Justice Minister, Professor Nqosa Mahao.
They accuse him of interfering in and seeking to politicise the appointment of judges, saying he is the first ever politician to interfere in JSC matters.
The accusations are contained in an answering affidavit Adv Sekoai filed this week on behalf the JSC in response to Prof Mahao’s counter-application for the nullification of the process initiated by Judge Mahase and former Attorney General Haae Phoofolo to recruit five new High judges.
Adv Sekoai is JSC secretary by virtue of being the registrar of the High Court and Court of Appeal. Her affidavit represents Justice Mahase who authorised her to depose it.
“I have been duly authorised to depose to this affidavit by the first respondent (JSC) herein, who resolves to defend the current proceedings in view of the public importance involved,” Adv Sekoai states in her affidavit.
The duo also has no kind words for fellow JSC member, Public Service Commission (PSC) chairperson, Moshoeshoe Sehloho, who they accuse of “exposing” the JSC to “predatory” politicians.
This after Mr Sehloho filed an affidavit in support of Prof Mahao. Mr Sehloho charged that the purported appointments of the five are null and void because they were done without his input and that of another JSC member, Justice Sakoane Sakoane.
Justice Mahase and Adv Phoofolo met in their capacity as JSC members on 20 August 2020 and recommended that His Majesty King Letsie III appoints Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha as High Court judges.
But up to now the quintet have still not been appointed. Authoritative government sources told the Lesotho Times that King Letsie III declined to appoint them on the grounds that he could not append such a “weighty matter” decided upon without the input of other JSC members.
Even before the King had rejected the recommendations, Prof Mahao had already criticised Justice Mahase and Advocate Phoofolo for “meeting in secret” and making the recommendations without consulting him as the responsible minister.
He said the two did not even constitute a quorum of JSC members. The JSC comprises of four members, namely the chief justice, the attorney general, the chairperson of the PSC and a nominated judge who in this case is Justice Sakoane.
Following the King’s failure to appoint the five, the obscure White Horse Party last month filed a Constitutional Court application for an order compelling His Majesty to act on the JSC’s recommendations and appoint the five.
The little-known political outfit also wants Prof Mahao to be interdicted from interfering with the work of the JSC and its independence.
Prof Mahao responded by filing a counter-application to have Justice Mahase and Adv Phoofolo’s recommendations nullified on the grounds that they were done without the quorum of JSC members. He also argues that their decisions were invalid on the grounds that they did not inform him as the responsible minister.
He wants the court to order the JSC to furnish him with the record of its proceedings which informed the entire process culminating in the recommendation of the appointment of the five as judges.
He also wants the JSC records to include the names of the shortlisted candidates for consideration as judges, the names of people and or institutions who nominated the candidates, the number of considered candidates and the criteria employed in selecting the five candidates for appointment.
The JSC, White Horse Party, King Letsie III, Adv Sekoai, the National Reforms Authority, The Law Society of Lesotho, the Lesotho Lawyers for Human Rights, the Independent Electoral Commission (IEC) and the Registrar of Societies are the first to ninth respondents respectively in the application.
But Justice Mahase and Adv Sekoai have hit back by arguing that the nomination of judges is the sole responsibility of the JSC and there is nothing binding them to inform Prof Mahao or any other politician as they have no roles to play in the process.
“The executive does not have any role to play in relation to the appointment of judges because that constitutional function is the preserve of the JSC,” Adv Sekoai states on behalf of the duo.
“I aver that there was no need to alert the executive in view of the provisions of section 132(8) of the constitution, which make it clear that the JSC, in its exercise of its functions under the constitution, shall not be subject to the direction or control of any other person or authority. I therefore aver that the provisions of this section exclude the right of the executive to be alerted of appointments of judges.
“My office under the direction and supervision of the Chief Justice is responsible for facilitating the headhunting of candidates to fill vacant positions alluded to. There is no office or officer who gets involved in the recruitment, nomination and appointment of judges because of these reasons: firstly, the Chief Justice identifies suitable candidates and requests them to submit their resume and profiles.
“Secondly, the Chief Justice instructs the registrar to make a proposal to the JSC. The JSC considers the suitability of each candidate for appointment. Those who are suitable are recommended for appointment. Finally, the recommendation for appointment is made to the King. The King is the ultimate appointing authority.”
Adv Sekoai further argues that there was nothing amiss about Justice Mahase and Adv Phoofolo’s conduct as they carried out the recruitment process in the same way it had always been conducted by previous JSC members since the enactment of the current constitution in 1993.
According to her, the fault is not with Justice Mahase and Adv Phoofolo. They simply followed the constitution in so far as it related to the JSC recruiting judges without any political involvement and without disclosing how they arrived at their recommendations.
She argues that Prof Mahao’s argument for an open transparent process involving other stakeholders including the Law Society of Lesotho can only be entertained when the constitution has been amended as it does not support such arguments in present form.
“I observe that the minister (Prof Mahao) has an ideal JSC in mind as set out in his affidavit. However, the JSC being a creature of statute must act within the bounds and confines of enabling legislation. It must comply with the requirements of the governing legislation and once it does so, its decisions cannot be faulted simply because of perceptions and idealism.
“I admit that the recruitment of judges and so their ultimate appointment has been designed by the framers of the constitution in such a manner that it insulates the process from political interference such as the one manifested (sic) by the minister. I aver that there is no legal obligation arising from the constitution and the governing legislation on the part of the JSC to consult or seek the approval of the executive in the appointment of judges.
“I also note that the minister advocates for (sic) ‘the presence of the political factor in the recruitment, selection and appointment phase’ of judges. However, the constitution does not allow the political factor in the appointment of judges as the situation stands presently.
“This is the first time in the history of the JSC operations that a minister could seek to make it accountable to him in the manner that he (Mahao) is doing. I confirm that I communicated with him that the JSC is not required to communicate with him matters (sic) relating to the recruitment and ultimate recommendation for appointment of judicial officers because of statutory obligations. In any event, the minister was acting ultra vires (beyond his legal powers) by making the kind of demand that he made. I admit that the real challenge facing the minister is the governing legislation not the JSC which operates in accordance with such legislation,” Adv Sekoai states.
Adv Sekoai also accuses Mr Sehloho of being in breach of the secrecy rules of the JSC by disclosing its proceedings in the affidavit he filed in support of Prof Mahao’s counter application.
She says he ought to have resigned if he was not happy with the JSC decision to recommend the appointment of the five instead of divulging the JSC proceedings as he had done in his affidavit.
She hinted at disciplinary action against Mr Sehloho for allegedly breaching the confidentiality rules.
“I deny that he (Mr Sehloho) has been authorised to depose the affidavit. He is actually in violation of Rule 6 (of JSC rules), whose consequences he appreciates very well. He ought to have done an honourable thing of resigning as a member of the JSC if he felt that he did not accept its decision to discharge its constitutional mandate by recommending the appointment of judges instead of violating the provisions of Rule 6 under the pretext that he was better placed to react to the critical issues of contestation of this matter.
“He did not attend the meeting in which the appointment of judges was recommended. He is therefore not in a position to inform the honourable court about what happened in that meeting. The JSC has not delegated powers to Mr Sehloho. He is therefore precluded from speaking on its behalf and there is no resolution of the JSC authorising him to do what he has done.
“It is not correct that Mr Sehloho is deposing to his affidavit to allegedly uphold the constitution and to protect the JSC. As a matter of fact, his conduct has exposed the JSC to the predatory eyes of politicians such as the minister (Mahao), who believe that judges should be appointed by the executive,” Adv Sekoai states.
She also denies that she refused to give Mr Sehloho curricula vitae (CVs) of the five candidate judges as alleged by the latter in his affidavit in support of Prof Mahao’s application.
She said she failed to do so due to “limited resources” which prevented her from printing copies of the CVs of the nominated judges.
In his affidavit, Mr Sehloho states that he decided not to attend the 20 August 2020 meeting at which the judges were appointed because of Adv Sekoai failure to furnish him with CVs of the candidates. He felt he could not deliberate on an issue of that magnitude without being given the opportunity to study the candidates beforehand.
He said the secrecy surrounding the nomination of the candidates was unprocedural and therefore invalidated the final decisions by Justice Mahase and Adv Phoofolo.
However, Adv Sekoai said Mr Sehloho could instead have requested for a postponement of the JSC meeting instead of snubbing it as he did.
The way judges are appointed in Lesotho has stirred a hornet’s nest with analysts demanding that the process be halted until constitutional reforms are completed to foster a transparent and competitive public appointment process as done elsewhere in South Africa. Judges are the cornerstone of any governance system based on the rule of law and their independence is partly guaranteed by the manner and form of their appointment. The current system of appointing judges, even if done by all four JSC members, is patently inadequate and unrepresentative, analysts have argued.
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