Law and Justice Minister, Professor Nqosa Mahao, is determinedly fighting back a bid to have five new judges appointed via an opaque process.
He has filed a counter-application in the Constitutional Court for the nullification of a recommendation by only two members of the Judicial Service Commission (JSC) to have the five appointed.
The recommendations were made by Acting Chief Justice 'Maseforo Mahase and Attorney General Haae Phoofolo at their 20 August 2020 meeting. However, they were rejected by King Letsie III on the grounds that they were made without the involvement of the other two JSC members, Public Service Commission (PSC) chairperson Moshoeshoe Sehloho and Judge Sakoane Sakoane.
The little-known White Horse Party subsequently filed a Constitutional Court application for an order to compel the King to act on the JSC's recommendations and appoint the five as judges.
The political outfit also wants Prof Mahao to be interdicted from interfering with the independence of the JSC.
The JSC secretary, Advocate 'Mathato Sekoai, even filed an affidavit last week in support of the party. In her affidavit, Adv Sekoai accused Prof Mahao of interfering with the independence of the JSC. She said the JSC was not required to inform Prof Mahao or anyone else in the executive about its meetings to nominate candidates.
But Prof Mahao fought back this week by filing a counter-application wherein he accuses Justice Mahase and Adv Sekoai of reaching a "collusive agreement" to undermine the procedures of the JSC in seeking to have the fine appointed.
Prof Mahao now wants the court to order the JSC to furnish him with the record of its proceedings and or correspondences which informed the entire process which culminated in the recommendation of the appointment of the five as judges.
The JSC, White Horse Party, King Letsie III, Adv Sekoai, the National Reforms Authority, The Law Society of Lesotho, the Lesotho Lawyers for Human Rights, the Independent Electoral Commission (IEC) and the Registrar of Societies are the first to ninth respondents respectively in the application.
Prof Mahao wants the JSC records to include the names of the shortlisted candidates for consideration as judges, the names of people and or institutions who nominated the candidates, the number of considered candidates and the criteria employed in selecting the five candidates for appointment.
He wants the court to declare "that the purported recruitment and nomination leading to the consequent recommendation for appointment of five undisclosed judges by two commissioners of the JSC is illegal and or unconstitutional on account of it being in utter breach of Section 132 (10) of the constitution of Lesotho".
"The first respondent (JSC) is directed to convene fully constituted of its four members and cause for the recruitment and nomination of judges for consequent recommendation to the third respondent (His Majesty the King) in line with Section 120 (2) of the constitution of Lesotho."
Shortly after Justice Mahase and Adv Phoofolo's meeting which led to the recommendation of the five candidates, Prof Mahao held a press conference in Maseru where he argued that the duo's meeting and decisions were invalid because they had not informed him about them as the responsible minister. He also said their decisions were invalid as they were made without the requisite JSC quorum.
The two were the only ones who attended the meeting while other JSC members, Mr Sehloho and Judge Sakoane did not attend.
In his court application, Prof Mahao stands by these sentiments he made at the press conference.
"I find no blemish in my press conference and if anything, everything that I said is in line with the policy of the government which I am part of.
"The decision-making of appointing five substantive judges by the Judicial Service Commission constituted of only two members is not in line with the dynamic and fledgling constitutional democracy," Prof Mahao states.
"I aver that the arranged meeting of the attorney general and the acting chief justice demonstrates a somewhat collusive agreement that was staged to undermine the interrogatory procedure employed by the members of Judicial Service Commission in the recruitment of judges.
"... not only was I deprived of all the information pertaining to the developments but the two other (JSC) commissioners (Sehloho and Justice Sakoane Sakoane) were also blind-sided for want of a better word or phrase," Prof Mahao says with regards to Mr Sehloho's claims in his own affidavit that he and Justice Sakoane were not furnished with the names of the candidates prior to the nomination.
Prof Mahao further argues that the JSC cannot meet and recommend people for appointment without the knowledge of the government. He argues that the executive's demand to be informed of the JSC's proceedings cannot be said to be an interference with the independence of the JSC and the judiciary.
He says the judiciary is only independent when it comes to hearing court cases "but in the administrative context, the executive and legislature have an interest sanctioned at law which aims to probe and interrogate the accountability aspect".
"I insist that the Judicial Service Commission is an institution of government and the executive and legislature have a right to demand to be informed of major developments which have a bearing on the administration of the judiciary like the recruitment, nomination and eventual appointment of judges.
"I wish to take the court into my confidence and assert that the independence of the judiciary which is being overzealously being talked by the deponent (Adv Sekoai) should not be construed to suit the personal and selfish ends of the (JSC) commissioners. Judicial accountability is the reverse side of judicial independence," Prof Mahao argues.
He further argues that JSC members are public servants and should thus be subjected to public scrutiny for their actions.
"The Judicial Service Commission is accountable to the other arms of government and must align itself with government's policy. It must as a matter of necessity, publish the selected names for the sake of greater transparency, the criteria that they apply and the qualities they look for in their appointment process. This was not done: it was an exercise engineered by only the acting chief justice and attorney general."
Prof Mahao also acknowledges that the constitution is faulty in that there is no clear criteria spelt out for the recruitment, nomination and eventual appointment of judges.
He suggests that such shortcomings should be addressed in the envisaged judicial reforms that the country expects to implement in line with the 2016 SADC recommendations.
"... The misconception harboured by the government's detractors or should I perhaps say, my detractors, is that I am seeking to capture the judiciary. This is the most disingenuous proposition that falls to be rejected.
"What the government advocates especially in this period of reforms of laws ... is the transformation of the laws to accommodate transparency and accountability in the recruitment and eventual appointment of judges. This has been the most neglected areas since the advent of the 1993 constitution of the Kingdom of Lesotho... ," Prof Mahao states.