Mohalenyane Phakela

IT is wrong for Prime Minister Thomas Thabane to push for the appointment of controversial Acting Chief Justice, ‘Maseforo Mahase, as the substantive head of the judiciary when there is a pending court case regarding her fitness to remain on the bench, analysts have said.

The analysts said King Letsie III should therefore disregard Dr Thabane’s advice for him to appoint Justice Mahase to succeed Justice Nthomeng Majara who had to step down last month, almost two years after Dr Thabane sent her on forced leave over her alleged incompetence and misconduct.

Dr Thabane last month approached His Majesty the King to appoint Justice Mahase as the Chief Justice of Lesotho. This compelled All Basotho Convention secretary general, Lebohang Hlaele, to write to King Letsie III, saying she not be confirmed because there was a pending court application for Justice Mahase’s impeachment, which he (Mr Hlaele) filed on 20 August 2019.

According to analysts, it would be improper to appoint someone when there is a court case over that person to fitness to remain in office. In any event, the analysts said there was already an agreement among all the stakeholders including the governing coalition and the opposition that there should not be any appointments to key statutory institutions until after the full implementation of the constitutional, security sector, judicial, media and other key reforms aimed at achieving lasting peace and stability in Lesotho.

The analysts say there are more clear-cut issues which would make for prima facie (on the face of it) charges of incompetence and misconduct against Justice Mahase.

Therefore, according to the analysts, instead of recommending that King Letsie III appoints her as substantive chief justice, Dr Thabane should be recommending her removal from the bench for conduct which has turned Lesotho’s judiciary into the butt of jokes and undermined confidence in the justice system.

This after her latest controversial 5 February 2020 episode of freeing First Lady ’Maesaiah Thabane on bail after the latter had been arrested and charged with the 14 June 2017 murder of Prime Minister Thomas Thabane’s former wife, Lipolelo.

Lipolelo was gunned down in cold blood in June 2017 just two days before Dr Thabane’s inauguration for his second stint as prime minister.

Just when it appeared that the police had made a breakthrough in the case which shocked Lesotho and the international community with the arrest and arraignment of ’Maesaiah, Justice Mahase shocked all and sundry by unprocedurally taking charge of Ms Thabane’s bail application.

According to authoritative judicial sources, the bail application was supposed to have been heard by the judge on call for bail applications and other urgent applications as per practice. That judge on call that week was Justice Keketso Moahloli, not Justice Mahase. The week before it was Justice Tšeliso Monapathi.  The sources said contrary to practice, Justice Mahase decided to hear the case herself and granted the First Lady bail despite spirited opposition from the State which had argued that Mrs Thabane was a flight risk as she had already skipped the country after she had been called in for questioning. Now that she had been formally charged, she would have reason to abscond permanently, the State had argued.

As if that was not controversial enough, it has since emerged that Ms Thabane’s bail was only paid on Thursday a day after she had already been released.

Prominent legal practitioner, Advocate Letuka Molati, blasted Justice Mahase for presiding over Ms Thabane’s bail application, saying she should not have involved herself as this could be construed as her way of repaying Dr Thabane for recommending that she appointed substantive chief justice in place of Justice Majara who agreed to go after being suspended by the premier in September 2018.

“It really defies logic how Ms Thabane who fled from justice and then comes back is granted bail,” said Adv Molati, adding, “This sets a bad precedence”.

“The First Lady’s release was premature and wrong. It should not have been done by Acting Chief Justice ’Maseforo Mahase who already has a deal with Prime Minister Thabane that she be confirmed in her acting position. Any other judge could have presided over that case and besides the law is very much against cases being heard in chambers as there has to be transparency at all times.  Justice must not only be done, but must be seen to be done hence the case should have been heard in an open court.

“The big question is why was there this preferential treatment for the First Lady when other clients in a similar position were denied bail? Why her in particular?

“When a judge has listened to both parties in a matter and is convinced that the accused is a flight risk the bail should be denied but this wasn’t the case as we know that the Prime Minister is still trying to get Acting Chief Justice  Mahase to be confirmed as the new chief justice. For that reason, Justice Mahase is highly conflicted. Any other judge could have heard this application,” said Adv Molati whose clients include murder-accused former army commander, Lieutenant General Tlali Kamoli.

Among other charges, Lt-Gen Kamoli is accused of the 25 June 2015 murder of army commander, Lt-Gen Maaparankoe Mahao. Lt-Gen Kamoli is languishing in remand prison having been denied bail since his arrest in October 2017.

National University of Lesotho law lecturer and All Basotho Convention (ABC) deputy leader, Professor Mahao, criticised the latest moves by Dr Thabane to have Justice Mahase appointed substantive chief justice, saying “it cannot be right… to appoint someone who has so patently proven herself not to be competent for the job”.

“I don’t know how someone can appoint someone (Justice Mahase) who has so patently proven herself to be incompetent for the job…And then he (Dr Thabane) still proceeded to recommend the appointment of someone like that. It is a disaster. But it just shows that leaders in this country don’t have the interests of the nation at heart, it is all about themselves and their friends,” Prof Mahao said.

The ABC deputy leader was on the receiving end of several judgements by Justice Mahase in court cases relating to his power struggle with Dr Thabane in 2019.

Justice Mahase first made headlines with her January 2019 ruling which upheld the ABC’s disqualification of Prof Mahao from contesting the party’s February 2019 elective conference. Her decision was immediately overturned by the Court of Appeal, paving the way for Prof Mahao to contest and beat a strong field of ABC heavyweights to clinch the coveted post of deputy leader.

May 2019 was an especially torrid month for Justice Mahase who was on the receiving end of a public protest by ABC supporters after they accused her of bias and dragging her feet in a case in which three ABC legislators — Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) wanted the election of Prof Mahao and his allies into the party’s national executive committee (NEC) nullified.

It was also the month in which, in an inexplicable turn of events, Justice Mahase nullified the ABC’s entire elective conference.

The Court of Appeal subsequently rescinded Justice Mahase’s judgement nullifying the elective conference and giving control of the ABC to the old NEC.

The apex court even went as far as banning her from presiding over cases relating to the ABC power struggle in 2019.

Commenting on Dr Thabane’s moves to secure the appointment of Justice Mahase, retired lawyer, Advocate Lekhetho Rakuoane, said Dr Thabane should not embarrass His Majesty by compelling him to push his own unlawful agenda.

“We are not expecting the Acting Chief Justice to be confirmed as the substantive head of judiciary due to the impeachment case hovering over her.

“It is only right that the case be solved first because if she is confirmed when it is still pending, it means Ntate Thabane’s successor will have to impeach her on grounds that she was illegally appointed Chief Justice. That would be at an unnecessary cost to the government.

“Besides the country is currently seized with the reforms process and we are not expecting anyone to be appointed to any substantive position until the reforms are completed. Justice Mahase should remain acting as there is no compelling reason for her to be confirmed as the chief justice at the moment.

“But as we have seen with Ntate Thabane, it is never a question of law or principles but what always about his personal interests,” said Adv Rakuoane.

On his part, National University of Lesotho (NUL) political science lecturer, Mohlomi Mahlelebe, said the recommendation of Justice Mahase for the top job was Dr Thabane’s way of rewarding her for her many rulings in his favour during the ABC power struggles and to ensure that she continues to secure his interests even after he has left office.

“An impeachment is an inquiry into one’s fitness to hold office therefore we would expect the rule of law to be applied in that where there is a pending case against someone, that person should not be promoted or appointed to any position. The prime minister has to wait for the outcome of that case before making recommending her promotion.

“It also gives the impression that the appointment is a reward for her (Justice Mahase)’s judgements role in the ABC court battles. Again, there is a murder case against the Prime Minister and his wife (‘Maesaiah Thabane) and since Ntate Thabane is on his way out, the idea may be to leave someone at the helm of the judiciary who will secure his interests,” Mr Mahlelebe said.

Transformation Resource Centre (TRC) director, Tsikoane Peshoane, said the King was “very alert to the advice” he has been receiving from the Prime Minister lately. He said instead of just following the advice, it appears the King has taken a conscious decision not to implement everything he is asked lest he goes against the constitution and what is morally acceptable.

“The King is alert. He is very conscious. First, he was advised to fire Police Commissioner Holomo Molibeli and he delayed responding to Dr Thabane only for him to be approached by the other coalition partners to say they were not in support of the move to sack Molibeli.

“Now the King has also been approached by the Prime Minister to say he must appoint Justice Mahase. He received the recommendation but has delayed his decision and that allowed other stakeholders to alert him of the pending court case against Justice Mahase.

“So, the King is very much cautious to avoid hasty decisions that might cause a crisis in the turn the country,” Mr Peshoane said.