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Judges’ recruitment: JSC must conduct transparent process

As we report elsewhere in this edition, the Judicial Service Commission (JSC) has begun a new process to recruit another eight judges to fill vacant posts in the High Court.

We hope that the JSC has learnt its lessons from its last recruitment which was finalised two months ago. This time it should avoid a process that is mired in opacity and unhelpful secrecy. Doing this will not only engender confidence in the JSC and its processes, it will also foster local and international confidence in our judiciary.

During the last recruitment exercise, the judiciary shortlisted six candidates from an initial list of 36 hopefuls.

The six were Fumane Malebana Khabo, Moneuoa Kopo, Realeboha Mathaba, Makhele Julius Sekati, Kuena Mabotsoa Thabane and Mamotšelisi Khiba. Advocates Mathaba and Khabo were eventually hired as new judges in October.

They and four others were shortlisted from a list which included Chief Magistrates ‘Matankiso Nthunya (central region), ‘Makampong Mokgoro (northern region) and Manyathela Kolobe (southern region).

The trio boasts several years of experience as magistrates. Magistrate Nthunya has been a magistrate for more than 25 years since she was first appointed in 1996.

Now these are not only magistrates but chief magistrates. One would imagine that they would have been favourites considering their vast experience and the fact that we have never heard of any allegations of impropriety and incompetence against them.

The likes of the current Ombudsman, Tšeliso Mokoko, have also been overlooked.

Former Prime Minister Thomas Thabane’s daughter, ‘Mabatšoeneng Hlaele, has also been overlooked despite that she is a seasoned lawyer and law lecturer at the National University of Lesotho (NUL).

Logic dictates that the likes of Chief Magistrates Nthunya, Mokgoro and Kolobe should have been given the nod over fellow candidates due to their several years of experience presiding over cases and being at the helm of the magistrates’ courts.

We are not saying they were automatic choices and should have been shortlisted under any circumstance. But the public deserved to know why people who appeared eminently qualified were not considered. The nation needed to know why the magistrates were unsuitable for logical progression to the High Court bench.

But the 22 July 2021 circular by JSC secretary, ‘Mathato Sekoai, did not provide any clarity as to how the choice of the six was arrived at.

All it said was that the JSC met on 22 July 2021, “considered the applications and nominations and came up with the six candidates who have met the shortlisting criteria published under the Judicial Service Commission Circular N0.1 of 2021 dated 31 March 2021.

On the face of it, all six shortlisted candidates appeared to have basic credentials enabling them to meet the minimum requirements for appointment.

While all had the relevant law degree, only Ms Khabo appeared to possess some form of experience in adjudicating cases in the courts as she was the Labour Court president.

Unsurprisingly there was an outcry from lawyers, analysts and the Judicial Officers Association of Lesotho (JOALE) who wanted to know how the six had been shortlisted.

The Law Society of Lesotho was equally flabbergasted. Its president, Tekane Maqakachane, said they subsequently sought an audience with JSC chairperson and Chief Justice Sakoane Sakoane to explain to them how the JSC arrived at the decision to snub prominent legal practitioners before eventually settling on Justices Mathaba and Khabo.

It remains unclear whether they got the audience with Justice Sakoane and whether their concerns were addressed.

But all the controversy could have been avoided if the JSC had embarked on a transparent process from start to finish.

We hope that the JSC has learnt from that debacle and the recruitment exercise will be transparent all the way this time.

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