FOR the second time this year, the political authorities in Lesotho are involved in major litigation that threatens the independence of the judiciary. As Carmel Rickard writes, the latest shock is the government’s determined efforts to get rid of Lesotho’s first woman chief justice, Nthomeng Majara.
THIS year is rapidly turning into one of the worst yet for judicial independence in Lesotho.
Just a few months ago, the country’s prime minister, Tom Thabane, was strongly criticized by the constitutional division of the high court for his blatant political interference in judicial matters, after the court showed how he had manipulated the appointment process to suit his own ends. That case involved the former head of the appeal court, Kananelo Mosito, found to have committed gross misconduct related to his non-payment of tax among other issues, and removed by King Letsie III. He was however brought back again by Thabane under highly controversial circumstances after Thabane was returned to office in the 2017 elections.
Now the prime minister is involved in another controversy; this time an attempt to get rid of his country’s chief justice, Nthomeng Majara.
In her founding affidavit, she said that in her view, the government targeted her because of the position she and other judges took that they could not swear in Mosito as president of the court of appeal, given the then-pending challenge to his appointment. This stand “caused the government to seek to remove me from office at all costs”. It also led to public claims by government that the judges, led by the chief justice, were “swindling the nation”.
The government now wants to appeal the full bench decision of the constitutional court declaring Mosito’s appointment unlawful, but since the appeal court is not functioning at the moment, there is a stalemate.
In an extraordinary court hearing in Maseru yesterday, 17 May, the chief justice, through her legal representatives, argued that a constitutional crisis was being forced on the country by the prime minister. He was trying to suspend the chief justice pending the appointment of a tribunal to investigate allegations he had made against her. Her legal team said the case strongly suggested that the executive was interfering with the independence of the judiciary.
This week’s hearing took place before a South African judge, Lepono Lekale, brought in to consider the application by the chief justice for an interim interdict against her own suspension and the appointment of a tribunal. Lekale agreed to the interdict and set 7 June as the return date for the matter to be fully argued.
However, in another bizarre development, the respondents – Thabane, as well as the minister of law and constitutional affairs and the attorney general – who had earlier demanded that no member of the Lesotho bench should preside in the matter, took exception to Lekale presiding, and gave notice that they would argue an application for his recusal on the same day, 7 June.
The prime minister’s legal team have filed no heads of argument in either dispute, but in submissions from the bar during yesterday’s hearing, Chris Lephuthing indicated that one of the grounds for the objection to Lekale, was the fact that he had been involved in an aspect of the cases related to Mosito last year. He and two other judges had been brought in to hear an application by Mosito in which he argued that the chief justice treated him unfairly by allocating his constitutional applications – of which there were a number – to judges brought from SA.
These facts suggested to his client that the judge would not bring an impartial mind to the present case, Lephuthing said.
Counsel for the chief justice, Motiea Teele, said it was unprocedural to “lump together” all the steps that could lead to a tribunal being established, as the prime minister had done. Instead one step should follow another, with proper time for the prime minister to consider any response made by the chief justice when she was given an opportunity to make representations as to why an investigation was necessary in the first place.
The fact that the prime minister was already asking for representations on the question of suspending the chief justice before he had had a chance to apply his mind to the representations on whether there should be investigations into her conduct at all, suggested to the chief justice that he had already made up his mind on the question of her suspension, Teele said. “That is not lawful.”
Backing up her perception that he had made up his mind was the fact that his confidential letter to her had been leaked to the media, and that the minister of law had issued a public statement “which effectively insulted the chief justice” and labelled her “as corrupt and a criminal”. This was all part of a pattern intended to damage her reputation among the public.
Teele characterized the minister’s comments as a “virulent attack” on the chief justice. Although judges were “accountable”, that did not permit members of the executive to “publicly attack” a judge as had been done in this case.
The official government complaints against her include allegations that she did not sit often enough to hear cases, and that she was involved in financial impropriety relating to the house that she rented from a fellow judge.
In her founding affidavit the chief justice said however that in November last year she was approached by the then minister of justice and correctional services who said she should stand down “because the government did not want to work with (her) any longer”. She had replied that the government did not have to like her. “My service was not at the pleasure of any politician of whatever political orientation.”
She said she was threatened that she would not win any fight with the government as they would do everything in their power “to make life difficult for me, and by the time they are done with me I would be finished and no one would even want to touch me professionally.”
“I was under tremendous duress,” she adds, listing all the government officers who pressurized and threatened her. In her view, the unprecedented statements made against her “constitute an onslaught on the judiciary”.
The case has drawn the attention and concern of the Southern African Chief Justices’ Forum whose members have issued a statement urging that her right to be represented in the matter by counsel of her choice be respected. This comment was apparently aimed at the criticism of the chief justice by the attorney general for appointing outside lawyers to represent her in the dispute.
The International Commission of Jurists which has just completed a five-day fact-finding mission in Lesotho also expressed concern about the action against the chief justice in a statement made at the end of their visit.
Their statement further urged that Lesotho deal with problems related to judicial independence that the ICJ had highlighted in a previous report. The delegation voiced its concern about the fact that the court of appeal has effectively stopped functioning. “We were troubled to discover that (it) has not sat in the past two of its scheduled sessions and with the current impasse we are concerned that it may not convene anytime soon.”
They stressed how important it was for Lesotho to ensure that the “constitutional and legal framework on the selection, appointment and tenure of judges and the actual practices” all conformed to Lesotho’s international obligations in terms of the human rights treaties to which it is a party. The ICJ had been concerned for some years about threats to judicial independence in Lesotho, the statement said, and was also concerned that its recommendations on reform to address structural issues “to do with guaranteeing the independence of the judiciary” had not been addressed since their last visit.
Similar concerns are being raised by the international legal community about a brewing constitutional crisis in the Seychelles where attempts are under way to remove the chief justice. There too, the chief justice is the first woman to hold the post.
Notice of motion (PDF)