FORMER Chief Justice Nthomeng Majara is a history maker in that she was the first woman to be appointed to the post of chief justice of Lesotho. She served in that post from 2014 to 2019. Before that, she had held several other high-profile posts including lecturing at the National University of Lesotho (NUL).
She was also a researcher with the Women and Law in Southern Africa Research and Educational Trust in the early 2000s. She briefly headed the Internal Affairs Department of the Lesotho Revenue Authority (LRA) before being appointed High Court judge in 2004.
She also chaired the Commission of Enquiry on the Adoption of Children in Lesotho and became a member of the Council of State. Outside Lesotho, she briefly served as a judge at the High Court of Namibia in 2010.
While she has held several high-ranking posts, she is undoubtedly best known for her time as chief justice of Lesotho. Despite her legal acumen, her highly-publicised fallout with the then Thomas Thabane-led government between 2018 and 2019 attracted more attention than any of her achievements in the chief justice's post. The then government attempted to oust her over allegations of impropriety and the failure to tackle the huge backlog of cases in the High Court.
She eventually struck a deal with the Thabane administration to leave the post, but not before she had been subjected to a trial in the court of public opinion through protests against her which had the blessings of the then government.
In March this year, she surprised all and sundry when she was unveiled as one of the founder members of the newly-formed Sam Matekane-led Revolution for Prosperity (RFP) party.
There has been no honeymoon phase for the RFP as it will tomorrow head into elections against established parties like the All Basotho Convention (ABC), Democratic Congress (DC) and many others.
Ahead of the polls wherein the RFP is considered to be among the top three contenders alongside the DC and ABC, the Lesotho Times (LT) Editor, Herbert Moyo, this week engaged Ms Majara. In this interview, she, for the first time relieves the torrid time she endured leading up to her exit from her post as chief justice. As RFP deputy leader and legal expert, she also outlines her party's vision for the judiciary in particular.
Excerpts:
LT: You served in the judiciary and rose to the pinnacle of the profession as chief justice. What made you consider a switch to politics?
Majara: I did not really switch careers to politics. I am still a lawyer by profession. However, after a lot of persuasion from the leader of the RFP (Matekane), some of the other founding members and other well-meaning people, I bought into the idea of joining a team of patriotic Basotho whose main purpose is to save the country from its current problems and from the brink of collapse. We want to turn things around and amongst other things, growing its economy and bettering the lives of Basotho.
LT: Of all the parties you could have joined, why the RFP and not any of the other 65 parties?
Majara: I did not join the RFP. Rather, I co-founded it, together with the leader and the other founding members. I did not join the other parties because I never had any good reason to, having seen their performance in the last fifty plus years, and also because I had hitherto never really wanted to, nor planned to venture into politics.
LT: As a legal expert, can you articulate the challenges affecting the judiciary in Lesotho.
Majara: There are a myriad of challenges that face the judiciary in Lesotho. One of them is the issue of appointment of the top judges namely the Chief Justice and the President of the Court of Appeal which is reposed in the Prime Minister who advises His Majesty the King to appoint them. This is done without any proper guidelines and/or merit based considerations, such as competency, a proven record of efficiency and/or effectiveness, professionalism and integrity, to mention but a few. In the absence of such guidelines, the appointments are effectively political and whimsical which is in itself problematic as experience has shown. Given this scenario, the bearers of those offices cannot really be said to have security of tenure because even the question of their removal is a matter of the whims of a sitting prime minister. Another challenge is the inadequate budget which is allocated to the judiciary and which has been reduced consistently every financial year. Lack of resources stultify judicial work and is a big contributor to the huge case backlog. It also makes it very difficult for the judiciary to grow in terms of numbers in order to effectively deal with the perennial problem of a huge workload. In addition, the fact that the superior courts, more especially the High Court is centralised, is very problematic. While there is now a division in the North at Tsifa-li-Mali, Leribe, there is still a big need to further decentralise it so that Basotho can access justice more easily both in terms of distance and cost of travel, especially those who live in far flung areas.
LT: In your time as a judge and later as chief justice, what challenges did you encounter due to political meddling by the executive arm of government?
Majara: The challenges which I encountered in my time both as a judge and later as chief justice were a clear lack of appreciation of the principle of separation of powers and judicial independence, which is one of the cornerstones of true democracy. Where there is no respect for separation of powers, there is no rule of law and that defeats the entire idea of proper checks and balances which is a requisite for good governance. Some members of the executive did not even understand that as a member of the executive arm of government, the justice minister is not the boss of the chief justice and other judicial officers, but just a supporting minister whose mandate it to ensure that the judiciary is properly functional by providing them with financial and other resources, as well as any other support as may be necessary.
As the chief justice, the challenges which I faced are legendary and I do not think I can do justice and adequately cover all of them in one article. Suffice to say that expectations from most people were that I would carry out my functions in a way that would favour the prime minister who advised His Majesty the King, to appoint me. To mention but a few, in the early days, I received threatening letters from some members of his party that they were going to petition the prime minister to remove me from office because I was not seen to be favouring him in both my administrative and judicial decisions. I would also receive direct orders to allocate certain cases to particular judges and to review and change some decisions of the subordinate courts and judges outside the parameters of the courtroom. When I resisted all of these, I became a victim of a well-orchestrated smear campaign, where I was demonised, humiliated, insulted, vilified and falsely accused of corruption amongst other things. The story that I allocated myself a house of one of the Judges in a corrupt manner was a deliberate distortion of facts as a way to lay a basis for getting rid of me as the chief justice. Yet, the process of how the house was acquired was done openly and transparently by the then registrar, who was the chief accounting officer. Strangely enough, when he called a press conference to explain the process, the public reception was very hostile and he was called names and accused of arrogance simply because people could not handle the fact that he confidently explained the process which would undo the damage that had already been done to my name and integrity. A march that was organised by some lawyers, professional staff and a member of the executive at which I was humiliated and called all sorts of unsavoury names is also a matter of public knowledge.
The situation was very ugly in that some of the High Court Judges, professional staff, magistrates and support staff, radio and print media houses, social media were part of the campaign. Memorial services that are customary to honour the memory of departed members of the legal fraternity also became a forum for humiliating and insulting me to a point that I stopped attending them. Stories that were fabricated against me came in numbers with some of them being so fanciful that it was amazing to realise that even enlightened people were actually believing them. The list is endless.
It was a very painful chapter in the history of my entire career. I was treated like a pariah and the most evil and vile individual the country had ever seen. I still bear the scars to-date, and they will probably never go away. The crunch was when a particular minister of justice and the then principal secretary paid me a visit, the crux of their mission being, to tell me that the government of Lesotho no longer wanted to work with me and that the Prime Minister had sent them to tell me that they were going to get rid of me and should I resist, they would make sure that they destroy me and by the time they were done with me, no-one would want to touch me professionally. Like I said, it was a long and ugly nightmare which will take an entire book or two to sufficiently document and tell my story.
LT: You were head of the judiciary when Lesotho began the multi-sector reforms process. Among others, judiciary reforms are supposed to be implemented. Please share how best you think the judiciary should be reformed.
Majara: I think the best way that the judiciary should be reformed is by reviewing and reforming the process of appointment and removal of the Head of the Judiciary. The process should be taken away from the office of the Prime Minster and be reposed in a body or panel of professionals who should carry out their mandate in terms of a clear policy and guidelines.
The constitution of the Judicial Service Commission also needs to be reformed so that it becomes more inclusive of all the relevant stakeholders.
The appointment of other judicial officers should also be done in a more competitive and transparent manner with the short-listing and interviews being preceded by proper research into the professional, political and personal history of candidates to ensure that the appointees are ones that are best suited for the job.
There should also be a disciplinary apparatus which should be staffed with able professionals whose mandate will be to deal with complaints against judicial officers for purposes of accountability and responsiveness. One of the most serious causes of concern for most litigants is the unconscionable delays in the delivery of judgments, the taking of bribes by some judicial officers, absenteeism from work without good cause, endless postponement of cases and so on and so forth. These complaints should be dealt with by the body which I have mentioned above.
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The judiciary should also be allocated a budget which will be sufficient enough to cover operations, salaries and also increase human and other resources which the entire Judiciary is in desperate need of, in order for justice to be dispensed more efficiently and speedily.
More specialised courts should also be established, especially for offences such as fraud, corruption and money-laundering which are very endemic as this would help relieve the already overburdened courts of the heavy work load. This would in turn bring about a more effective and speedier dispensation of justice.
LT: Does the RFP have specific policies for the reform of the judiciary? If so, please share.
Majara: The RFP has specific policies for the reform of the judiciary most of which I have already covered in my response above.
LT: Is the judiciary truly independent in Lesotho? If not, what can be done to enhance its independence?
Majara: In my opinion, the judiciary is not truly independent and my personal story can be seen as a classical example. Some of the ways in which judicial independence can be enhanced is by allocating the judiciary a certain percentage of the annual budget so that they are not overly dependent on the executive arm of government both financially and otherwise. In addition, the executive should be educated and made aware of the importance and benefit of not meddling with the Judiciary and interfering with it in the execution of its functions. Contact between the two arms should be very limited and minimal in order to avoid the temptation to cross the line that divides them.
Judicial officers should also stay in their lane and avoid hobnobbing with politicians with the hope that they are all going to be appointed as chief justice which used to be the case during my tenure.
It is only when the judiciary is truly independent that everyone stands to benefit, irrespective of their status and power. Governments come and go and it is only when people are no longer in power that they appreciate the real benefit of having an independent judiciary.
LT: Lately we have seen processes aimed at increasing transparency in the appointment of judges. These include public interviews among other things. What is your take on these? Are there any other ways you would recommend to make the recruitment processes even better?
Majara: I am in support of the holding of public interviews as a way of insuring transparency in the appointment of judges which I believe is a good start. However, I believe that the process can be enhanced in the manner that I have stated in my responses above.
