Lesotho’s embattled Prime Minister, Tom Thabane, may well be about to resign his post as he has promised. But while his All Basotho Convention (ABC) party and the people of Lesotho wait for him to indicate the date on which he will stand down, Thabane is far from idle.
His latest efforts, presumably made this week, have been aimed at lobbying for the appointment of the Acting Chief Justice, Maseforo Mahase, as Chief Justice. And it is understood that he has recommended her appointment to King Letsie III.
Thabane is standing down in the wake of splits in his party, coupled with a police search for his current wife, Maesaih, wanted for questioning in connection with the murder of Thabane’s second wife, Lipolelo. But the Prime Minister himself is continuing to provide material of intense interest to the judiciary and to litigants.
His recommendation of Justice Mahase to the position of Chief Justice has led to a bitter four-page letter addressed to the office of the King, by lawyers acting for Thabane’s son in law, Lebohang Hlaele.
Hlaele, a member of the ABC, but fired from a senior cabinet position by Thabane, began legal action against Justice Mahase last year. This ligitation was brought to have the judge censured and has not yet been finalised.
Hlaele’s lawyers wrote to the King this week saying that their client, Hlaele, recently discovered that the Prime Mininster had recommended the ACJ for appointment as Chief Justice.
They add, ‘The ripple effect of [the appointment of Justice Mahase as Chief Justice] in circumstances where there is a pending case in which her conduct as ACJ is on the radar, is that of undermining the administration of justice.’
‘We are further fortified in the view that the endeavour on the part of the head of government is meant to violate the sacrosanct principle of sub judice and for that reason [we] take strong exception against the approach and reserve client’s right to challenge the prospective appointment in circumstances where there is a pending case seeking to have her disciplined on allegations of judicial misconduct.'
‘The act borders [on] constructive contempt of court which your esteemed office should be inclined to avoid.’
The lawyers explain to the King that they have written to his office ‘owing to the peculiar circumstances surrounding the manner in which this litigation has been conducted since its inception.’
They point out in passing that the four institutions of government (including the office of the King) were all represented by the same legal team, even though the ACJ was ‘sued in her personal capacity’. Hlaele’s lawyers say it is ‘legally reprehensible’ for the ACJ to be represented at taxpayers’ expense in a case where it is clear that she is sued in her personal capacity.
Hlaele’s legal team says the purpose of the letter, however, was to express the reservations of their client about the appointment of Justice Mahase as Chief Justice, and to ‘caution against acts which are calculated to undermine institutional and decisional independence of the judiciary.’
They point out that Thabane had publicly declared that he is preparing to step down as head of government. Therefore, any measures he might use ‘under the guise of constitutional powers conferred upon his office, in [the] prevailing circumstances is clearly unconstitutional and smacks of an improper motive.’
The lawyers said their client had instructed them to relay ‘a strong message but with genuine moderation and humility’ to the King. The message was that Lesotho was experiencing a ‘very turbulent phase of state governance which demands strict adherence to the values of the rule of law.’
‘The stability of the judiciary is an essential prerequisite of a stable and sound democracy’ and they thus ask the King not to endorse or appoint Justice Mahase.
And, in case the King accedes to Thabane’s recommendation, Halele says he reserves his right to challenge ‘the propriety’ of that appointment.
Since being appointed ACJ, Justice Mahase has made something of a name for herself with her support for the cause of striking magistrates – she was once a magistrate – and for her moving addresses to international and African conferences on the predicament of Lesotho’s judiciary, both judges and magistrates. Her theme is the extremely difficult circumstances under which the judiciary must work in this empoverishd country to ensure justice for even the poorest of the poor, and her presentations have won standing ovations.
Lesotho is ranked high in the literacy of its people, but 2016 figures put almost 60 % of the population below the poverty line, while its HIV/AIDS prevalence rate is the second highest in the world.
The present Chief Justice, Nthomeng Majara, has been suspended since September 2018, and it was reported by local media a year ago that a financial package had been agreed between her and the government in exchange for her leaving office. This has not been finalised however.
While the real reason for her suspension has never been established, Justice Majara is one of a growing number of top judges pushed out of the way when elections return a different party to power in Lesotho. The motive for attempting to remove the Chief Justice or the President of the Court of Appeal seems, in a number of cases, to be to allow the appointment of a judge seen as more likely to favour the new ruling party, or at least not overtly linked with the previous government.
Faced with this problem, cynicism about judicial independence is widespread in Lesotho. Along with outside observers, people believe it is under severe threat – perhaps even disappearing – and many simply dismiss judicial decisions on party political issues as evidence of sympathy towards a particular political grouping.