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‘Chief Justice should resign or be suspended’

’Marafaele Mohloboli

PRIME Minister Thomas Thabane says that Chief Justice Nthomeng Majara should voluntarily resign or be suspended over misconduct allegations even though nothing has yet been proved.

Dr Thabane said Justice Majara’s resignation or suspension was necessary to preserve the image of the judiciary.

Dr Thabane also said there was nothing in the law that could prevent him from recommending the Chief Justice’s suspension to His Majesty King Letsie III in terms of Section 121 (7) of the Constitution.

Dr Thabane made these and other submissions in the answering affidavit he recently filed in response to a court application that Justice Majara recently filed seeking an order to interdict the premier from advising His Majesty to appoint a tribunal to recommend whether or not she should be impeached over allegations of misconduct.

Dr Thabane said that the Court of Appeal has previously stated “a judge’s probity must be above suspicion”.

“Consequently, a judge accused of conduct seriously impairing his or her integrity, though nothing has yet been proved, may have to step down voluntarily or be suspended in order to preserve the image of the judiciary,” Dr Thabane states in his affidavit.

Dr Thabane wrote to Justice Majara on 27 April this year, requesting that she ‘show cause’ why she should not be suspended and why a tribunal should not be appointed to impeach her on various charges of misconduct including the alleged failure to preside over cases for two years. The backlog of cases has been estimated to be in the region of 4000 by some judicial officers.

Dr Thabane accused Justice Majara of impropriety relating to her M27 000 per month deal to rent a house from her colleague, Justice Teboho Moiloa. The M27 000 figure is said to be “way above” her statutory allocation of M4000 per month.

However, Justice Majara who is represented by Advocate Qhalehang Letsika KC of the Mei & Mei Attorneys, fought back by filing a court challenge against Dr Thabane last month.

Dr Thabane, the Minister of Law, Lebohang Hlaele and the Attorney General, Haae Phoofolo are cited as first to third respondents respectively in Justice Majara’s lawsuit.

She accused Dr Thabane of using legal and extra-legal means to hound her out of office.

She said the extra-legal means included threats from some cabinet ministers, principal secretaries and public demonstrations by some individuals who styled themselves as the ‘Hands off Mosito’ campaigners.

But in his answering affidavit filed on Tuesday, Dr Thabane, said there was nothing in law that could prevent him from recommending the Chief Justice’s suspension to His Majesty the King in terms of Section 121 (7) of the Constitution.

“There is nothing in law that can prevent me from recommending the suspension of Applicant to His Majesty the King…I have carefully noted that and considered the mainstay for the (Justice Majara’s application), and I am convinced that this collateral civil application in the course of contemplated enquiry by the tribunal is unwarranted and procedurally incorrect.”

The premier also said that Justice Majara was misdirected in arguing that her envisaged suspension and impeachment constituted an attempt by the executive to curtail the independence of the judiciary.

He said instead the suspension and impeachment were motivated by the need to “remove errant judges from office”.

“It is contended in the applicant’s papers that the issue in this case is the independence of the judiciary in Lesotho, independence articulated and guaranteed in the constitution and with it the preservation of the separation of state powers and the rule of law.

“This contention by the applicant is fundamentally misdirected. It (Justice Majara’s application) confuses two separate and distinct constitutional mechanisms: on the other hand there is the general power (and duty) of the government to safeguard the independence of the courts, and on the other hand the power of His Majesty the King, at the instance of the Prime Minister, to remove errant judges from office.

“There is no suggestion in the constitution, however broadly interpreted…to support the truly startling proposition that the removal (of judges) should give way to judicial independence. Both these constitutional values (judicial independence and the removal of errant judges) have to be safeguarded. These values are indeed inviolable and vital for the preservation of democracy in the Kingdom of Lesotho.”

Dr Thabane added that while judges occupied high office and enjoyed the respect and support of the government in the exercise of their functions, they were however, “not princes but they are servants”.


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