• as he makes last-ditch bid to block Mahase’s appointment as chief justice

Mohalenyane Phakela

ALL Basotho Convention (ABC) Secretary General, Lebohang Hlaele, has approached the High Court in a last-ditch effort to stop outgoing Prime Minister Thomas Thabane from advising His Majesty King Letsie III from appointing Acting Chief Justice, ‘Maseforo Mahase, as the substantive chief justice.

A fortnight ago, Dr Thabane announced that he was stepping down due to “waning stamina” after more than five decades in politics. He did not give a specific date for his departure. The wily politician appears to have quietly gone about the business of making crucial appointments to statutory positions which will outlive him as evidenced by his January 2020 recommendations of Assistant Police Commissioner Janki Hlaahla and Justice Mahase to the posts of Police Commissioner and Chief Justice respectively.

Assistant Commissioner Hlaahla was recommended to replace current police boss, Holomo Molibeli, and the latter has accused Dr Thabane of seeking to oust him as part of a desperate bid to stop the police from investigating his alleged role in the 14 June 2017 murder of his former wife, Lipolelo Thabane. Similarly, some ABC members, including Mr Hlaele, are on record saying Justice Mahase was unfit for the top job because she was biased in favour of Dr Thabane in his battle for control of the party with his deputy, Professor Nqosa Mahao throughout 2019.

Mr Hlaele first launched his High Court bid for an order to compel the Judicial Service Commission (JSC) to recommend the removal of Acting Justice ‘Maseforo Mahase on 20 August 2019 but the case stalled after Justice Mahase successfully petitioned the courts to compel all local judges to recuse themselves from hearing the application.

On Friday, Mr Hlaele resuscitated his bid to have Justice Mahase removed from the High Court bench after receiving information that Dr Thabane had recommended the appointment of Justice Mahase as the substantive head of the judiciary.

The incumbent, Chief Justice Nthomeng Majara, was suspended in September 2018 on a litany of allegations including the failure to deal with the huge backlog of cases and timeously deliver judgements.

Justice and Correctional Services Minister Semano Sekatle yesterday told the Sunday Express that the post of chief justice became vacant sometime last year after the government agreed an exit package with Justice Majara and therefore Dr Thabane was well within his rights to advise the King to appoint Justice Mahase to fill the vacancy.

“The government finalised Justice Majara’s exit sometime last year although I cannot remember the exact date. Therefore, the position of chief justice is vacant hence the Prime Minister’s move to advise the king to appoint her replacement,” Mr Sekatle said yesterday.

Dr Thabane’s attempts to catapult Justice Mahase have roused Mr Hlaele into action. On Friday, Mr Hlaele’s lawyer, Koili Ndebele, told this publication that he had telephoned the recently reinstated Registrar of the High Court and Court of Appeal, Advocate ‘Mathato Sekoai, demanding that Mr Hlaele’s application for Justice Mahase’s removal from the High Court bench be heard.

Attorney Ndebele also wrote to King Letsie III on Thursday asking His Majesty not to disregard Dr Thabane’s recommendation for the appointment of Justice Mahase as chief justice on the grounds that there was a pending application for her removal from the bench.

“The case for her removal has been dormant since Justice Mahase’s application for the recusal of all local judges and we have been waiting to be allocated judges for the matter to proceed,” Attorney Ndebele told this publication on Friday.

“The recent developments aimed at confirming Justice Mahase compelled us to follow up on the application to ensure that our case against her is heard. I have communicated with the Registrar over the phone and she seemed keen to assist my client. A formal letter to her (Advocate Sekoai) will follow and we will await her response.”

In his letter to King Letsie III, Attorney Ndebele says that the move to confirm Justice Mahase is “calculated to undermine institutional and decisional independence of the judiciary”.

“The ripple effect of the substantive appointment as Chief justice of the learned judge in circumstances where there is a pending case in which her conduct as Acting Chief Justice 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 (Dr Thabane) is meant to violate the sacrosanct principle of sub judice (under judicial consideration) and for that reason 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 Prime Minister has publicly declared that he is preparing for his exit as head of government and any measures employed by him under the guise of constitutional powers conferred upon his office in prevailing circumstances is clearly unconstitutional and smacks of an improper motive.

“We have been instructed by the client to relay a strong message but with genuine moderation and humility to His Majesty the King to the effect that Lesotho is undergoing 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 for that reason we humbly behove His Majesty the King to refrain from endorsing and or eventually appointing Madam Justice ‘Maseforo Mahase to the venerable office of Chief Justice’” the letter states.

Attorney Ndebele said that if Justice Mahase were to be confirmed as the substantive chief justice, his client would challenge the appointment.

On her part, Adv Sekoai, who resumed duties last month after a lengthy suspension dating back to 2012, said she was still to look into Mr Hlaele’s application.

In his constitutional application, Mr Hlaele accuses Justice Mahase of several acts of commission and omission which he says have put Lesotho’s judiciary into disrepute, warranting her removal from the bench.  Mr Hlaele is seeking an order for the Judicial Service Commission (JSC) to kick-start processes to have the acting chief justice impeached.

“His Majesty the King to appoint a tribunal pursuant to the provisions of Section 121 (5) (a) of the Constitution 1993 (as amended) to inquire into the fitness or otherwise of Justice Mahase to hold office as a judge of the High Court.

“Upon establishment of a tribunal, the Judicial Service Commission be directed to recommend to His Majesty the King the suspension of Justice Mahase as a judge of the High Court,” Mr Hlaele states in his application.

But Judge Mahase fired back with her Constitutional Court application for the recusal of Lesotho’s entire bench from hearing Mr Hlaele’s case. She accused local judges of gross incompetence. She said she feared that some will rule unfavourably against her because of her differences with them. She said some of the judges had been insubordinate and refused to take instructions from her since her September 2018 appointment as the acting chief justice. Ironically, Judge Mahase cited Justices Tšeliso Monapathi and Keketso Moahloli, the judges in her recusal case, among the “insubordinate” judges.

“As acting chief justice, I am the chairperson of the JSC and as such I have to deal with numerous complaints from members of the public about judges of the High Court. I also in that capacity in the JSC have mandate, together with other members, to also deal with the discipline of some of my colleagues who are currently presiding over this case.

“Obviously, whatever negative or adverse decision the JSC may come to in the future, the concerned judge may feel that the JSC may have been adversely influenced by the chairperson because that particular judge may have presided over this matter. Consequently, I aver that this is a case where all judges of the High Court bench have to recuse themselves so that aspersions are not case in the future,” Justice Mahase said in her court papers.

She also accused other judges — Justices Thamsanqa Nomngcongo and Molefi Makara — of refusing to take orders from her.

She said it was also important for all local judges to recuse themselves from the case on the grounds that the country was polarised on political lines to an extent that the public was always going to be suspicious of any outcome of the case against her.

The Constitutional Court bench comprising of Justices Tšeliso Monapathi, Semapo Peete and Keketso Moahloli ruled in favour of Justice Mahase, bringing Mr Hlaele’s application to a halt.

King Letsie III is yet to respond to Mr Hlaele’s request that His Majesty ignores Dr Thabane’s recommendation for Justice Mahase’s appointment. Should he ignore Dr Thabane’s advice, this will be the first time that His Majesty has done so. Dr Thabane also wanted His Majesty to appoint Assistant Commissioner Hlaahla in place of Commissioner Molibeli.

The appointment of Mr Hlaahla should have been with effect from 10 January 2020 but it has since been blocked by a 12 January 2020 interim High Court order pending the finalisation of Commissioner Molibeli’s application for a final order to stop Dr Thabane from recommending his removal from office. The police boss’ application will be heard on Monday.

It will also be a test case regarding the extent to which the King can ignore the advice of the prime minister when hiring and firing heads of statutory bodies and other decisions affecting state business.