Lesotho's Acting Chief Justice names fellow judges likely biased against her

27 September 2019 · Carmel Rickard

The Acting Chief Justice of Lesotho, the woman who recently brought a hall full of African judges to their feet with applause as she explained the difficult circumstances under which judges and magistrates in that country operate, is on notice that she is fighting for her professional life. Judge Maseforo Mahase says 'powerful forces' in Lesotho want her impeached. Though three local judges have been appointed to hear the case that will decide whether an impeachment tribunal should be set up to investigate allegations against her, she says the three - plus the entire high court bench of judges - should recuse themselves and that foreign judges should be asked to hear the matter.

Fighting for her professional life, the Acting Chief Justice of Lesotho, Maseforo Mahase, has urged that foreign judges should be appointed to hear the pending application for a probe into her fitness to hold office. In a strongly-worded affidavit filed with the constitutional panel of the high court this week, she says that the three local judges already appointed to deal with the matter should stand down.

The three are due to consider the controversial application brought by the recently-dismissed minister of law and constitutional affairs, Lebohang Hlaele. He has been a litigant in some of the cases between two factions within the ruling All Basotho Convention. The courts have been approached to hear a number of cases involving the two factions, but the judgments - whatever the outcome - have led to allegations of judicial bias, and the action by Hlaele against the ACJ is seen by many as an attempt to get rid of her because she has found against his faction.

The ACJ was recently given a standing ovation when she told a hall full of judges from other African jurisdictions about the difficult circumstances under which the judiciary (judges and magistrates) operated in Lesotho. But back home, things are not so easy for her. She said she and other judges are regularly vilified in the local media for their decisions and the whole country is polarised on political lines. Given the 'highly charged political environment' where judges in political cases were seen as biased one way way or the other depending on the outcome of a matter, it would protect the reputation of the court if all the judges from Lesotho, including the three who have been appointed to hear the impeachment matter against her, recused themselves.

The ACJ said she also chairs the Judicial Service Commission and has to deal with many complaints by the public about judges of the high court. This involves disciplining fellow judges. The feelings this could evoke would be another reason for all the local judges to stand down from her case.

As an example, she mentioned her file on Judge Thamsanqa Nomngcongo about whom many people had complained for non-delivery of decisions. Repeated calls and orders ‘in the context of labour relations’ by herself and by the presently-suspended CJ, Judge Nthomeng Majara, had not produced any response from Judge Nomngcongo and she was about to recommend to the JSC that disciplinary action be taken against him. Similarly, Judges Tseliso Monapathi and Keketso Moahloli had ignored her instructions to issue long overdue judgments.

With the exception of three ‘very junior judges’ and Judge Teboho Moiloa, ‘all of the high court judges answerable to me have not obeyed my orders that they should write long overdue and pending judgments’.

She recalled that she had had to ‘strongly reprimand’ Judge Nomngcongo for his actions in relation to a court file. He had ‘shouted at her’ and spoke in an ‘unbecoming manner’.

Similarly, Judge Moahloli would have preferred Judge Mokhesi ‘to be his senior’ and there was a pending complaint on the issue before the JSC. ‘He cannot sit as a judge in this case.’

‘I have numerous complaints about (Judge Molefi Makara) for refusing to deal with civil matters. Some of the judges are not happy … that I am the ACJ. For instead, Judge Chaka Makhooane is not enamoured with me as she is a closer friend to the suspended CJ than with me.’

The application brought against her cited suspicion of collusion. But in her view it was ‘politically expedient’. Those suing her wanted to tarnish the image of the judiciary to achieve political ends ‘unknown to me but (about which) I have my suspicions. I am being sued for propaganda purposes to pursue those political ends unknown by me. I am being vilified as a person, as a judge and ACJ.’

The ACJ asked why it was that the Law Society of Lesotho which had brought another application against her, was selective in its targets. In her view, it had also been ‘hijacked by politicians’ to serve a particular political agenda.

The cases against her were ‘a direct attack on the administration of justice’ and on judicial security of tenure. While it would wise for all judges of Lesotho to recuse themselves, those already appointed ought, in her view, not to have agreed to hear the matter.

Given the situation, there was ‘a clear case for recusal of the whole bench, as it inspires a very just fear in us, the applicants, and gives rise to a suspicion in us that they will not judge according to the dictates of justice…. The whole bench of the high court of Lesotho is suspect.”

Supporting her position, the Attorney General, Hae Phoofolo, urged that the issue should be approached ‘quite calmly’ and should not be regarded as a ‘slight’ to Lesotho’s high court judges. He had instructed counsel for himself and the ACJ to inform the court already appointed to hear the case against the ACJ, about the intention to file for recusal of the whole panel and the rest of the local high court judiciary.

The three had been informed that the application would be made on a number of grounds including the ‘close affinity’ they might have with the ACJ ‘as their current boss’. This had been brought to the attention of the court so it could decide the issue of recusal without the need for a formal application. Unfortunately, however, the court had directed that a formal application be filed.

He said the essence of the application was that no high court judge should sit in judgment of the ACJ, particularly since she was being sued in her personal capacity, in terms of which her character and integrity were being questioned.

It was only fair that the matter be heard by foreign judges who had no relationship with any of the parties. And it was thus in the best interests of justice that the three judges already appointed recuse themselves from this case.

‘There is propaganda to bring the high court into disrepute, especially (the ACJ). I cannot stand idly by and do nothing to stop this. The administration of justice is being undermined by unscrupulous individuals who only have their interests at heart at the expense of the judiciary and the country.’

He claimed that any judge who did not stand down in this matter, ‘but continues to sit, commits an irregularity in the proceedings every minute he continues to remain in such matter.’

The AG said the high court bench had to avoid ‘making absurd decisions that might compromise the rule of law and warp the administration of justice’ and that this could only be done if all the local judges refused to hear the case, and allowed foreign judge to preside instead.

It is not yet clear when the recusal application brought by the ACJ and the AG, will be heard.

Carmel Rickard

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