PRIME Minister Thomas Thabane says the constitutional court must dismiss Chief Justice Nthomeng Majara's application for an order to interdict him from taking any disciplinary measures against her because this would make the office of the Chief Justice a "parallel entity" which is not accountable to the executive.
Dr Thabane said this in his heads of argument which were filed on Tuesday in response to Justice Majara's submissions to the court to support her application for the interdict against Dr Thabane.
Justice Majara in May this year filed an urgent application before the High Court for an order to interdict Dr Thabane from recommending her suspension from office over a plethora of misconduct allegations. The misconduct allegations include Justice Majara's alleged failure to ensure the timeous delivery of justice as well as her controversial M27 000 per month housing deal which is way above the authorised limit of M4000.
The Chief Justice also petitioned the court to interdict Dr Thabane from advising His Majesty, King Letsie III to appoint a tribunal to recommend whether or not she should be impeached over the same allegations.
However, Dr Thabane this week argued that Justice Majara's application to interdict him from recommending disciplinary or any other measures against her would render the office of the Chief Justice an untouchable and accountable to any authority.
"It is respectfully submitted that the application is legally untenable type of relief which effectively seeks to emasculate the institution of the judiciary from accounting to other branches of government," Dr Thabane argued.
"The catch phrase to the effect that the government of Lesotho be interdicted and prevented from taking any or whatever measures against the applicant (Justice Majara) is clearly an unconstitutional approach to the extent that judicial independence is mutually inclusive of judicial accountability.
"The interdict in itself seeks to create a parallel entity which is not accountable and removed from the other two branches of government (the legislature and executive). It is respectfully submitted that the Chief Justice is accountable to other branches of government and an interdict that completely emasculates the Prime Minister from giving effect to the mechanisms provided for under the constitution for purposes of making the chief justice accountable for her actions in the public office that she occupies is in itself an unconstitutional approach."
Dr Thabane also suggested that it was in Justice Majara's own interests to appear before a tribunal to clear her name if indeed she was innocent of the misconduct charges.
"What real harm will the Chief Justice suffer if she runs through the ordinary mills of a tribunal where she shall be accorded all the privileges and rights which attach to a judge placed before a tribunal?
"Is it not in her best interests to appear before the relevant tribunal with a desired end of clearing her name over her alleged misconduct which by her own admission attracted widespread criticism from the ordinary members of the public?
"Her interests in the circumstances of this case obviously have to be weighed against those of the public and the institution that she heads," Dr Thabane said.
Dr Thabane also sought to dismiss Justice Majara's submission that he (Dr Thabane) would be biased when it came to the appointment of the tribunal to preside over the misconduct charges. Dr Thabane argued that the Prime Minister will not be one of the panlists on the tribunal and the Chief Justice had a right to apply for the recusal of any member of the tribunal "if there is any real apprehension of bias on any one of the appointed members".
"It is worthy of mention that the Prime Minister is not the decision maker over the applicant's (Justice Majara) fitness to hold office. He (Dr Thabane) is merely the appointing authority of the panelists who shall constitute the tribunal.
Dr Thabane accused Justice Majara of contradicting herself by saying the government was out to get her with the exception of Deputy Prime Minister Monyane Moleleki.
"There is a great deal of contradiction that can be discerned here, it seems the applicant projects an argument that the two institutions being the executive and the judiciary are at odds but on the same note she stages an argument that the only member of the executive who is qualified to deal with issues that have to do with an enquiry into her conduct is the Deputy Prime Minister of the same executive to which she seeks protection from," Dr Thabane said.
He said Justice Majara's proposed argument created many constitutional challenges and that there was no authority that would support her proposed candidate on issues that have to do with her fitness to hold office.
Dr Thabane, the Minister of Law, Lebohang Hlaele and the Attorney General, Haae Phoofolo are cited as first to third respondents respectively in Justice Majara's lawsuit.