The Lesotho courts, already embroiled in a scandal-ridden series of cases involving the Acting Chief Justice, the Prime Minister and others, have now had to intervene in what has been held to be the unlawful action of the Minister of Local Government and Chieftainship. At the end of July, Litsoane Litsoane disbanded the Maseru City Council’s tender board, citing certain ‘irregularities’. But Judge Molefi Makara has now set aside the decision because the tender board members, including Maseru’s mayor and her deputy, had not been given a chance to put their views on the issue. The judge described this as ‘disregarding the God-given blessing upon (all) mankind that a person should be heard before any adverse decision is taken.’ This dispute, and the action involving the ACJ, come as the judiciary struggles with a widespread perception that certain politicians feel entitled to have judges ‘on their side’ in the decisions they make.
Like virtually every other institution in Lesotho, the Maseru City Council – or at least certain of its tenders and some of its members – have been accused of corruption. In response, and citing certain ‘irregularities’, the Minister of Local Government and Chieftainship, Litsoane Litsoane, dissolved the city’s tender board at the end of July 2019.
But tender board members, angered by the move, asked the high court to intervene. Six members, including the mayor and deputy mayor of Maseru, wanted an interim order that the minister and other officials be stopped from ‘interfering’ with board members and their rights and privileges, including their salaries, ‘occupation of houses they currently occupy’ and use of their normal office space.
They also asked that the minister be interdicted from appointing any new members to the tender board while their legal action was finalised. Further, they wanted all decisions made by the board that the Minister had purported to appoint in their place, to be declared null and void.
The presiding judge, Molefi Makara, urged that the two sides try to settle. Despite some attempts, the court was later told no progress was made and that they had ‘agreed to disagree on all the material issues’.
At the next hearing, counsel for the tender board applicants told the court there was a move to oust the mayor. Counsel had written to the Town Clerk explaining that the issue was before the court and that any no-confidence vote thus would be unlawful. But the vote went ahead and the mayor was replaced. While counsel for the mayor argued that this move was intended to frustrate the continuing legal action, the minister’s legal team said there was ‘no nexus’ between the two events. This led to a sharp interjection by the court, with the judge calling for a ‘profound reflection’ on the link and for supplementary affidavits to be filed on this issue.
One of the main complaints by the mayor and other tender board members was that the Minister took the decision to remove them all, without having given them a hearing. The Minister, on the other hand, argued that he had the power to act as he had done and that there was no need to have first heard the applicants’ views.
Judge Makara, however, said that the relevant sections of the Local Government Service Act did not give the Minister the authority to disband the council.
‘It is inconceivable how counsel for the (Minister) assigned such a construction to it while it does not by any stretch of the imagination do so.’
Even if the Minister believed the board had been illegally constituted, it would have had to be lawfully disbanded. In this case, counsel for the Minister had not expressly pleaded facts showing there were special circumstances that ‘justified a disregard of the God-given blessing upon (all) mankind that a person should be heard before any adverse decision is taken,’ said the judge.
What about the vote of no confidence that ousted the mayor, despite an order that the status quo was to be retained while the case was finalised? And what about the argument that the move in no way undermined the court?
The people on the Maseru City Council knew about the case, said the judge. They should have known about the temporary order and that their actions would ‘frustrate’ the case then pending before the court.
‘It is of cardinal importance for the maintenance of the rule of law that judgments of the courts should be respected and honoured.’ In this case the actions of the rest of the council seemed aimed at getting round the court’s interim order. As leaders, the council members should set an example by respecting decisions of the courts. It might be that they suddenly faced a change in their own fortunes and needed the help of the courts. ‘They would certainly not be happy if, after the judgment is entered in their favour, their adversaries resort to unorthodox tactics calculated (to render) it impotent.’
The judge also stressed that while he had granted most of the orders requested by the tender board, he could not agree to interdict the pending disciplinary inquiry against the mayor. To do so would have unjustifiably deprived the Minister of the power to discipline someone who commited misconduct. The court may not frustrate the exercise of disciplinary powers, properly exercised, he said.
While the Minister comes to terms with the significance of the orders against him in this case, other government parties are preparing for a showdown with three high court judges. The trio is set to hear a misbehaviour case against the ACJ – despite the fact that they are her juniors and are said to be facing disciplinary action as a result of complaints she has made against them. And despite the fact that there is a long-established practice in Lesotho, as elsewhere, that a neutral judge from outside should be invited to preside where litigation involves a judge from the local judiciary.