MASERU — Three months before he was unseated as prime minister, Pakalitha Mosisili was considering a request for the impeachment of Chief Justice Mahapela Lehohla over allegations of incompetence and protecting a senior official accused of corruption.
The proposal to have the chief justice removed had been made by the Law Society of Lesotho, Judicial Officers Association of Lesotho (Joale) and two chief magistrates at a meeting with the then Justice Minister Mpeo Mahase-Moiloa. The meeting had been requested by chief magistrates Molefi Makara and ’Matankiso Nthunya.
Advocate Zwelakhe Mda attended the meeting in his capacity as president of the law society at that time. The meeting was held on March 7 at a time when magistrates were on strike, lawyers were boycotting the courts and judges were not dealing with cases. The magistrates, lawyers and judges were protesting the Judiciary Service Commission (JSC)’s decision to transfer the former High Court Registrar ’Mathato Sekoai to a senior position in the magistracy.
After that meeting Mahase-Moiloa then wrote a letter on March 16 informing Mosisili that the magistrates, judiciary officers’ association and law society had suggested that he should find a constitutional way to impeach the chief justice. The letter, which the minister said she had written with a “heavy heart”, reached Mosisili’s office on March 19.
She said after she had told themeeting that Sekoai was going to be transferred to a position in the civil service Mda had turned his focus to the chief justice who he said was the main cause of the crisis in the judiciary.
“He (Mda) argued that the impasse within the judiciary does not get solved by the removal of the former registrar from the judicature; instead the solution lies with the inquiry into the competence of the chief justice,” the minister said.
Mahase-Moiloa said Mda argued that Justice Lehohla “is not competent to run the judiciary office of the highest order in the country”. According to the minister, Mda’s argument was based on his belief that:
? He (chief Justice) does not perform judicial functions and therefore not contributing to the development of the judiciary.
?He is not leading by example and his action demotivates the rest of the judiciary.
?He appears to honour and harbour the corrupt practices alleged against the former registrar.
Mahase-Moiloa told Mosisili that Mda’s statements “appeared to be the sentiments of the rest of the participants”. She said lawyers and magistrates “also talked in one voice when expressing their concern about the manner in which the Judicial Service Commission (JSC) handled the former Registrar’s case and other matters relating to appointments and promotions of the magistrates”.
The chief justice is the chairman of the JSC. “They categorically stated that they have lost confidence in both the Chief Justice and the JSC,” Mahase-Moiloa said.
The minister said the magistrates and the law society told her to inform Mosisili to invoke “section 121 (3), (4), (5), (6) and (7)” of the Constitution “to investigate their allegations against the chief justice”.
Section 121 of the Constitution says the Chief Justice or any High Court judge may be removed from office only for inability to perform the functions of his office or for misbehaviour.
The Constitution also says if the removal of the chief justice or a judge needs to be investigated the King shall appoint a tribunal, at the advice of the prime minister, which shall enquire into the matter and advise him on what to do with the chief justice or a judge. The Constitution gives the prime minister authority to select members of the tribunal if the investigation is against the chief justice.
Mahase-Moiloa however said there was a feeling that Mosisili “may engage some other soft measures to ensure that the chief justice vacates office without losing face.”
She concluded her letter by say it is “with a heavy heart that I am conveying this message to your esteemed office for consideration as requested by its authors”. The Sunday Express could not independently establish whether Mosisili had seriously considered the suggestion to impeach the chief justice.
What is however known is that Mosisili had been unhappy with the chief justice’s performance for some time. In particular, he was not happy that the chief justice was not hearing contested matters at a time when the High Court was battling a case backlog.
He made his feeling about the chief justice in his reply to the Southern African Chief Justices Forum’s complaint that the cabinet had stripped Justice Lehohla of his seniority ranking and given it to Court of Appeal President Justice Micheal Ramodibedi. Justice Lehohla had asked the forum, a grouping of chief justices from 15 southern African countries, to intervene after the cabinet had directed that the president of the Court of Appeal ranks above the chief justice in protocol.
In his response, written early last year, Mosisili had described the Justice Lehohla as “petty” and asked the forum to encourage him to start hearing contested matters.