A new decision from Lesotho’s highest court has made some uncomfortable findings about the country’s Chief Justice, Sakoane Sakoane. Three judges from outside Lesotho, brought in to hear the matter to ensure there could be no allegations of partiality given those involved, found that the Director of Public Prosecutions was not unreasonable in her apprehension of bias on the part of the CJ. The judges also found he had wrongly ‘punished’ controversial advocate Shaun Abrahams, lead counsel in the trial over which the CJ was to preside, both by finding that he had acted improperly, and by imposing a punishment not prescribed by the law. The high-profile trial, involving charges of murder and treason, must now continue before another judge.
A fractious dispute between Lesotho’s Chief Justice and the Director of Public Prosecutions has been decided by the Court of Appeal: three foreign appeal judges found the CJ had shown a pattern of conduct from which it was reasonable for the DPP to conclude that the CJ was possibly biased against the DPP and its lead counsel, controversial SA advocate Shaun Abrahams.
Given all the circumstances of the dispute, the CJ should have agreed to recuse himself, the appeal judges concluded.
They set aside his judgment and order refusing to stand down from the case and added, ‘for the avoidance of doubt, … the CJ shall not preside in that matter.’
Instead, they ordered that the trial should now be allocated by the registrar to ‘another judge who may be a judge recruited for the purpose from outside the jurisdiction or any other judge of the high court of … Lesotho.’
The original dispute, which grabbed headlines in Lesotho, concerned a number of issues related to the handling of a major treason and murder trial by the CJ and the DPP.
In essence, the CJ said that after years of delay, he wanted the trial to get going and set a date. Politely put, there was what seems to have been a misunderstanding between the CJ and the DPP and counsel about what was agreed in relation to the date when the trial proper would start, and what was to be done about counsel, including Abrahams, who said that they wouldn’t be able to make the date because of other prior commitments.
‘Wrong end of the stick’
When Abrahams didn’t arrive for the set date, the CJ assumed he would be out of the matter. But he appeared in court for the next date, prompting the CJ to question what he was doing there. The CJ then instituted an inquiry under the Speedy Court Trials Act and found Abrahams culpable, punishing him by refusing to allow him to appear in the rest of that trial.
The court of appeal, however, found that the law did not permit a punishment of that nature and agreed with the DPP that this was an example of the CJ’s apparent bias against the prosecution. There was no basis ‘for the CJ to hold the wrong end of the stick,’ the appeal court said.
The DPP also argued that the CJ wrongly allocated the case to himself, without consulting the government or the Judicial Service Commission that had decided that judges brought in from outside Lesotho should hear the high-profile cases now awaiting resolution in the country’s courts.
The DPP said the CJ’s intention behind this move was to prejudice the prosecution, a claim that the judges said was ‘too long a shot’. The CJ’s decision was ‘well intentioned’ and could not found an allegation of bias.
Referring to the fact that some other high-profile matters are already being dealt with by local judges, the appeal court said that any finding that no local judge should hear such a case would ‘play havoc’ with ongoing cases.
The DPP had not challenged the allocation of the case to the CJ at the beginning of the matter, so ‘the present and belated challenge can only be viewed as opportunistic.’
Letter and spirit
The court added, however, that the turn of events, shown by this case and the DPP’s complaints, illustrated ‘the correctness of the decision of the government and the JSC, which unfortunately was not implemented to its letter and in its spirit.’
What about the DPP’s claim of a reasonable apprehension of bias? The court listed the DPP’s complaints about the behaviour of the CJ and added, ‘These predilections or inclinations on the part of the CJ not only showed a pattern of conduct but also provided a basis for the DPP to apprehend the possibility of bias on the part of the presiding judge. She [the DPP] cannot be faulted for forming that view nor can her apprehension or perception be said to be unreasonable on the facts and the circumstances of the case.’
The appeal court said that in considering the complaints by the DPP, the judges had kept in mind ‘that it is not a small matter for the DPP … to apply for the recusal of the CJ of the country from presiding over a case of such high-profile nature.’
‘I have also considered the ramifications and untenability of a finding, on the one hand, that the exclusion of … Abrahams was not justified and directing, on the other, that he continues with his mandate in a court presided by the CJ without requiring the CJ to recuse himself. All these I have considered in seeking to answer the question whether … the DPP’s apprehension that the CJ will not bring an impartial mind to bear on the trial is reasonable. I have come to the conclusion that in all the circumstances of this case the CJ should have acceded to the request for his recusal.’
Though the DPP had asked for an order that the case should be allocated to and presided over by a foreign judge, the appeal judges declined to do so, and instead said it would be enough to direct that the matter ‘be placed before another judge.’
‘The decision whether that judge is foreign or local is left to the relevant authorities to make, as convenience and the interests of justice dictate.’