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‘Suspension of Court of Appeal political’

  • Rapapa blasts decision to suspend apex court session
  • says decision not justified as judiciary was given the funds that it asked for by parly

Mohalenyane Phakela

THE recent suspension of the April session of the Court of Appeal was a politically motivated decision aimed at ensuring that the All Basotho Convention (ABC’s) newly elected national executive committee (NEC) does not appeal to the apex court in the event that it loses its High Court dispute with party’s old NEC, some sources in the beleaguered ruling party have alleged.

The ABC’s old and new NECs are locked in a legal battle after the old NEC refused to accept the results of the party’s elective conference which ushered in National University of Lesotho (NUL) Vice Chancellor Professor Nqosa Mahao as the deputy leader.

In February, three ABC legislators Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) launched the High Court application seeking the nullification of the ABC’s NEC elections. The trio argue that the polls were marred by vote rigging and wants the court to order fresh elections within three months of the finalisation of their application. Prof Mahao has already indicated that he and the rest of the new NEC will appeal to the Court of Appeal should they lose the case which could be finalised anytime from this week.

And sources within the ABC have said last week’s decision to suspend the April session of the apex court which was supposed to have started tomorrow was done to ensure that the new NEC does not take its case to the apex court.

The incoming chair of the ABC in the new NEC, Samuel Rapapa has also expressed his disappointment at the suspension of the apex court’s sitting. Mr Rapapa said it was hard to believe that there were no funds when the judiciary had been allocated the money they asked for when the 2019/20 budget was presented.

The three ABC legislators High Court challenge is due to be heard by the Acting Chief Justice, ‘Maseforo Mahase, who ruled against Prof Mahao’s participation in the February polls only for the decision to be overturned at the eleventh hour by the Court of Appeal. The ABC sources told this publication that there is a feeling within the executive that the apex court could still rule in the new NEC’s favour should it lose its case in the High Court and take its case to the Court of Appeal. It was against this background- according to the sources- that the apex court was not advanced any funds or even allowed to begin its April session to ensure that it does not sit and hear a possible appeal from the new NEC.

“Professor Nqosa Mahao was only allowed to participate in the ABC elections by a last minute ruling of the Court of Appeal and that did not sit well with the old ABC national executive committee (NEC) and the party leader (Thomas Thabane) who went on to attack the Court of Appeal during their rallies thereafter,” one ABC source said.

“The case to overturn the election of Prof Mahao and the rest of the new NEC is currently before the High Court and the new NEC has already made it clear they will approach the Court of Appeal if the High Court should rule against them. The executive therefore refused to release funds and even refused to issue the apex court with a warranty which allows it to get services on credit during its sittings. This was done to ensure that the apex court does not sit and hear a possible appeal from the pro-Mahao faction of the ABC,” another source added.

However, the sources claims have been dismissed by the High Court Registrar, Pontšo Phafoli, who said the suspension of the Court of Appeal’s April session was caused by the simple issue of the shortage of funds for its operations.

The Assistant Registrar of the Court of Appeal, Advocate Mosito Rabotsoa, recently said the budget normally covers the five judges’ sitting allowances, flights and accommodation for the foreign judges, rented cars, petrol and the court’s operating expenses which include stationery and water, all of which is procured on credit.

Adv Rabotsoa said that all the necessary preparations had been made for the apex court’s April session but he was “shocked” by the government decision to suspend the session because the Court of Appeal always operated on credit and paid its creditors afterwards. He said there could be a hidden agenda behind the suspension of the April session.

“It is an established practice that the Court of Appeal has its first session in April every year and this happens when the government has just announced the national budget even when the actual allocations have not been made to the relevant ministries and government departments.

“That being the case, we normally get services on credit from providers who then submit claims for us to process their payments when we have received our allocation from the government. However, we were this week told by the Registrar of the High Court (Pontšo Phafoli) that we should suspend the April session because there are no funds and we should not get services on credit.

“I had already prepared everything for the session. I was shocked by the decision because it is not like we operate on a cash-on-delivery basis and it is not like the executive did not know that there was a session scheduled for April. I suspect that there is a hidden agenda behind the suspension of this session although I do not know what it is. It does not make sense that a warrant (to allow the court to get services on credit) has not been issued when everybody knew about this session,” Adv Rabotsoa said.

The chairperson of the parliament’s Economic and Development Cluster Committee, Samuel Rapapa, also told this publication that he was surprised that the apex court had been suspended allegedly due to lack of funds. Mr Rapapa who is the incoming ABC chairperson, said the funds for the apex court should have been availed because parliament approved the budget that was submitted by the Ministry of Justice and Correctional Services. The Justice ministry oversees the operations of the judiciary.

“This is my first time to hear that there is no money for the Court of Appeal to sit. What I can say is that different ministries presented their budget proposal before parliament and while others were cut, neither the Ministry of Justice nor the judiciary’s budget was cut. It was approved as they had asked.

“Well, any executive can play any game which they believe is in their political favour as they have the whole world to themselves. If it is their strategy to prohibit the ABC case from being appealed, then let them do but there is an end to everything,” Mr Rapapa said.

However, in a recent interview with the Sunday Express, Ms Phafoli said the Court of Appeal needed M900 000 to seat for the April session but the judiciary did not have such funds and only suspended the apex court’s session because the Ministry of Finance had not yet responded to the judiciary’s plea for funding.

“We were forced to defer the April session of the Court of Appeal due to circumstances beyond our control as 80 percent of the budget we got for the judiciary can only cover salaries while the remaining 20 percent has to be divided amongst the five judicial departments.

“The budget for this (apex court) sitting ranged between M800 000 and M900 000 but looking at the money we have, our budget could not even allow us to source services on credit because we will not have money to pay later. We work on estimates and we had hoped we would get money but reality sunk in when the national budget was presented. However, we have asked for more money from the Ministry of Finance and we are hopeful that we will reach a solution soon for the Court of Appeal to sit.

“This is not the first time we have fallen short on the budget and we always ask for help when we are in this situation. I do not see any political influence in the suspension of the Court of Appeal session because the funding problem affects the entire judiciary. The shortage of funds affects the entire judiciary and not just the Court of Appeal and so there is no justification for saying that the apex court session was suspended because of the ABC case,” Ms Phafoli said.

Meanwhile, the Law Society of Lesotho has also expressed concern over the suspension of the Court of Appeal and urged the government to ensure smooth running of the judiciary.

“It is important to understand that the Court of Appeal is a necessary ingredient of democratic governance without which a democratic state cannot properly function. The society strongly believes that Lesotho is a democratic state, therefore, we will be appealing to the stakeholders to maintain the integrity of the Kingdom as a democratic state, ensure the smooth and uninterrupted administration of justice, independence of the judiciary, maintain and uphold the rule of law,” part of the Law Society statement says.

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