- say they should be employed in the taxi industry and not on the bench
- chief justice directs the lawyers to explain their remarks
LAW Society of Lesotho president, Tekane Maqakachane, and his deputy, Lintle Tuke, have landed in hot soup after accusing some judges of being so incompetent that they should not be serving on the esteemed bench but be employed in the taxi industry.
In an unprecedented, scathing attack on the bench, the two top lawyers said Lesotho’s judiciary was so “toxic” because of a flawed appointment process that created room for corrupt and morally dubious characters to find their way onto the bench.
The judiciary in Lesotho is “toxic and not conducive to principled, morally upright and hardworking judges”, the two top lawyers declared, in remarks that have drawn the ire of Chief Justice Sakoane Sakoane.
The two lawyers’ remarks are contained in a statement read by Adv Tuke at the memorial service of the late High Court Judge Thamsanqa Nomngcongo in Maseru on 9 September 2021.
In her separate but identical 13 September 2021 letters to Advocates Maqakachane and Tuke, seen by the Sunday Express yesterday, High Court and Court of Appeal Registrar, ‘Mathato Sekoai, said Chief Justice Sakoane had given the duo until Friday 17 September 2021 to explain their remarks.
Adv Sekoai said Justice Sakoane wanted the two lawyers to name the judges they felt were not competent enough to be on the court benches but should instead be employed in the taxi industry.
While it is not clear whether Adv Tuke had responded to Adv Sekoai’s 13 September 2021 letter, Adv Maqakachane has however, struck a defiant note in his response.
In remarks that will probably add further fuel to an already combustible situation, Adv Maqakachane refuses to provide names as per the chief justice’s demand. He instead accuses Adv Sekoai of seeking to crucify them and make them scapegoats “for merely regurgitating views” of the judiciary that he says are widely shared by others in the judiciary including Justice Sakoane himself and previous chief justices.
He defiantly states that “no amount of intimidation will ever cow and cocoon the Law Society of Lesotho into trepidation and cowardly silence for raising matters of constitutional importance”.
In their statement at Justice Nomngcongo’s memorial service, Advocates Maqakachane and Tuke had paid a glowing tribute to the late judge, saying he was “a minefield of legal knowledge”. They then blame the politicisation of the judiciary for the failure to appoint the late Justice Nomngcongo to the apex court bench.
“Polemic structural issues, politics and the politicisation of the judiciary in this Kingdom has robbed us and the masses of the poor people of Lesotho the full potential and fruits that bear and drop from this gigantic tree.
“Why Justice Nomngcongo has not even once sat in the Court of Appeal boggles the mind. If merit and capacity were the criteria for judicial appointments and selection to the High Court and to the Court of Appeal including the subordinate courts, many of those who man our benches today would best be serving in the taxi industry and not in the high offices of our judiciary.
“It is for this same reason that as the Law Society, we welcome and congratulate the Judicial Service Commission (JSC) under the leadership of Chief Justice Sakoane, for having introduced an open and transparent recruitment and appointment processes, to sieve out undeserving elements from the system. The processes however are not fool-proof and require institutionalisation and calibration with the constitutional systems and structures,” the two lawyers said in their statement on behalf of the Law Society.
They said that “concomitant with the politics, systematic problems and structural issues which are now the common feature of our judiciary, is the undeniable fact of the High Court being a toxic and dangerous environment and ecosystem not fit and conducive for habitation by principled, morally upright and hardworking judges”.
They also said that previous chief justices Nthomeng Majara and ‘Maseforo Mahase (who held the post in an acting capacity) had both accused judges of defying the chief justice’s instructions, thus proving that the situation was toxic in the judiciary.
“Stratified along political lines and other interests, some of these judges, we are told, have formed their own little fiefdoms and each is responsible to a chief-agitator amongst their group. The tip of the iceberg was chronicled in the affidavit of Chief Justice Mahase filed before the High Court some years ago in a recusal squabble against judges of the High Court when Mahase CJ was sought to be impeached,” the two lawyers said.
“As a matter of fact and law, there is no place in the judiciary for such kind of judges. They should be impeached and removed from the office of a judge. Apart from these, there are issues of mismanagement, maladministration, lack of or misuse and abuse of funds and resources, unequal distribution of judicial work, selective allocation of certain cases of interest to the powers that be and corruption which essentially eat into the marrow and sinews of any human resource, including the judges. It is this toxic environment in which Justice Nomngcongo found himself, and no wonder it did not take him long before the cracks began to show and widened,” the lawyers added.
Adv Sekoai subsequently informed them that Justice Sakoane was unhappy with their remarks and had given him until last Friday to submit the names of “incompetent” judges who ought to have been employed in the taxi industry.
Adv Sekoai’s letters also contained the chilling hint that failure to respond appropriately could result in the two lawyers facing criminal prosecution for scandalising the judiciary in terms of section 90 of the Penal Code.
“I am directed by the Honourable Chief Justice to write to you in relation to certain remarks attributed to you,” Adv Sekoai states in her separate but identical letters to Advocates Maqakachane and Tuke.
“The Honourable Chief Justice is of the considered view that you raised serious of great constitutional importance which go to the very heart of the competence, integrity and the need for hygiene in the administration of the High Court. These, no doubt, are matters which must be addressed and dealt with, with a view to finding effective and permanent remedial action. The Honourable Chief Justice thanks you for putting these matters in the public domain of which he was not aware.
“The Honourable Chief Justice therefore requests you to assist him with the following information so that the necessary corrective measures can be taken: the identities of judges whom you say ‘would best be serving in the taxi industry and not in the High offices of our judiciary’,
“The nature and details of the toxic and dangerous environment and ecosystem not fit or conducive for habitation by principled, morally upright and hardworking judges.
“The above requested information must be submitted on or before the end of business on Friday 17 September 2021. Failure to do so will be taken to mean that the said remarks are devoid of legal and factual bases and would then be amenable to the interpretation that they were merely made and published to scandalise the courts (refer to section 90 of the Penal Code 2010),” Adv Sekoai said.
Repeated efforts to obtain comment from Adv Tuke were unsuccessful yesterday as his mobile phone rang unanswered.
However, Adv Maqakachane gave a defiant response.
In his 14 September 2021 letter to Adv Sekoai, he said that the Law Society was “heartily comforted” by Justice Sakoane’s recognition of the issues of “great constitutional importance” they had raised in their statement.
“The Law Society is however shocked and stunned that in the self-same letter of expressed admissions by the Honourable Chief Justice, a gauntlet is thrown down to Adv Tuke and the Adv Maqakachane in the form of a threat of criminal prosecution for scandalising the judiciary, buried as it is in the ultimatum of your letter against members of the council of the Law Society of Lesotho.
“Madam Registrar, no amount of intimidation will ever cow and cocoon the Law Society of Lesotho into trepidation and cowardly silence for raising matters of, admittedly, “great constitutional importance”, which the Law Society of Lesotho is not, and will not, at any time in the future, be apologetic about,” Adv Maqakachane states in his letter to Adv Sekoai.
He said the problems plaguing the judiciary could only be addressed through constructive criticism made in good faith.
He accuses Adv Sekoai of seeking to intimidate and punishing them for raising issues around the toxicity and corruption in the judiciary that had previously been raised by past chief justices as well as by Justice Sakoane himself. He says Justice Sakoane had raised concerns about the opacity of the appointment of judges in an affidavit he had filed in court. Although he does not provide further details, he says Justice Sakoane’s affidavit was filed in the case where then Law and Justice Minister Nqosa Mahao successfully challenged then Acting Chief Justice Mahase and then Attorney General Haae Phoofolo’s August 2020 decision to recommend the appointment of five people as judges of the High Court.
Justice Mahase and Adv Phoofolo had met on 20 August 2020 in their capacity as JSC members and recommended that His Majesty King Letsie III appoints Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Maliepollo Makhetha and Adv Moneuoa Kopo as High Court judges. Adv Kopo was also initially shortlisted by Justice Mahase and Adv Phoofolo in 2020.
But the five were not appointed with authoritative government sources saying that King Letsie III had refused to appoint them on the grounds that Justice Mahase and Adv Phoofolo could not just sit on their own and make recommendations without the input of the other two JSC members.
In his letter to Adv Sekoai, Adv Maqakachane also alleges that back in 2018, the Law Society had complained to Justice Majara about the improper conduct of an unnamed judicial officer who had abused his position to dissolve the marriage of two people who had appeared before him and went on to take the woman in the case as his wife. He said the unnamed officer even had the woman’s husband jailed and he later came out to find that the officer had also changed his children’s names “to the judicial officer’s own”.
No action was ever taken against the judicial officer, Adv Maqakachane said, adding this was one of the cases that proved their claims about the corruption in the judiciary.
He reiterates that they will not be cowed into submission.
“The comments in the statement of the Law Society at the memorial service aforementioned were solely based on true and correct facts which your office, Madam Registrar (as Registrar of the High Court and as secretary of the JSC) can easily lay your hands on, verify and forward to the Honourable Chief Justice to act accordingly.
“It cannot be, Madam Registrar, that when now the Law Society regurgitates these narratives which have previously been told by persons in high offices- some on sworn affidavits- and some having been inked into the history books of our democratic development, under the broad description of toxic environment, the Law Society’s officers-in-council become easy targets and scapegoats.
“The Law Society will continue to play its institutional and constitutional role of defending the judiciary and its independence, but will certainly not shy away from raising in good faith crucial and pertinent issues internal to the judiciary itself, in the interests of good governance in the judiciary, proper administration of justice and the rule of law,” Adv Maqakachane states in his response.
He was not reachable for comment on his remarks. Nor was Adv Sekoai reachable to say whether Justice Sakoane would make good on his alleged threats to criminally charge the two lawyers.