THE Judicial Service Commission (JSC)'s court battle with Law and Justice Minister Professor Nqosa Mahao over the appointment of judges has given the public a rare glimpse into the secretive and questionable manner in which the all too important body conducts its business.
From the JSC secretary Advocate 'Mathato Sekoai's court papers, we learn that over the years crucial decisions including the appointment of judges have been made by just two people who do not have to explain themselves to anyone.
All in all, the JSC has four members, a number which analysts this week said is nowhere representative of all the critical stakeholders in society.
Adv Sekoai's court papers also reveal that oftentimes the other two JSC members never participate in meetings preferring to leave everything in the hands of the chief justice and one other member.
In this manner and without any reasons being given, two JSC members have been allowed unfettered power to determine the trajectory of the judiciary through recommending the appointments of judges, magistrates as well as making other key decisions.
This is the opaque mode of operation which was followed by Acting Chief Justice 'Maseforo Mahase and outgoing Attorney General Haae Phoofolo when they sat on 20 August 2020 and recommended the appointment of five new judges.
Had things gone their way, the Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha would all be High Court judges by now.
But His Majesty King Letsie III is said to have declined to appoint the five on the grounds that Justice Mahase and Adv Phoofolo could not just sit on their own and make recommendations on such a weighty matter without the input of other JSC members.
The JSC comprises of four members, namely the chief justice, the attorney general, the chairperson of the Public Service Commission (PSC) and a nominated judge.
Even before the King had rejected the recommendations, Prof Mahao had already criticised Justice Mahase and Advocate Phoofolo for meeting in secret and making the recommendations without consulting him as the responsible minister.
He said the duo did not even constitute a quorum of JSC members.
He said their actions were contrary to the government's stated commitment not to appoint any new judges until after the implementation of envisage judicial reforms.
The judicial reforms are part of wider multi-sector reforms recommended by SADC to achieve lasting peace and stability in the country. It is envisaged that under the reforms, there will be a much more public and vigorous process of vetting any potential appointees to the bench as is done in South Africa and elsewhere.
But the JSC hit back through its secretary, Adv Sekoai, who argued that there was nothing amiss about Justice Mahase and Adv Phoofolo sitting and nominating their five candidates on their own.
Adv Sekoai also said the duo formed a quorum when they met and made the recommendations.
She accused the government of interfering with the JSC's work of recruiting new judges. She said the JSC was not required to inform the government before recommending anyone for appointment.
"According to the constitution, the nomination of judges is done solely by the JSC," Adv Sekoai told this publication.
"Section 132(8) of the constitution states that the JSC shall not be subjected to any control or direction of any other person or authority. Section 132(10) states that the JSC may continue its business in the absence of other members. Rule 5 of the JSC rules states that two members form a quorum as long as they agree on the subject of the day.
"In the laws I have quoted above, none of them talk about the role of the government in the nomination of judges. I do not know of any law which gives the government the power to interfere with the appointment of judges."
She repeated the same arguments last week in an affidavit she filed in support of the little-known White Horse Party's Constitutional Court application to compel the King to act on the JSC's advice and appoint the five as High Court judges.
Quite significantly, her affidavit has opened a window which enables the public to see just how two individuals, sitting in their capacity as the JSC, have over the years made crucial decisions in the affairs of the judiciary including the appointments of judges.
Adv Sekoai cites so many instances where former chief justices like Nthomeng Majara and one other individual sat and made decisions which were acted upon by the King.
Another bizarre JSC practice she brought to the public attention was that the JSC had decided the chief justice had two votes on any issue- one as the chairperson of the commission- and the other as its ordinary member. In this manner, a majority decision can always be achieved by two JSC members as long as one of them was the chief justice.
"Her (Adv Sekoai)'s court disclosures in support of the modus operandi of the JSC have the opposite effect of justifying why Prof Mahao is right in demanding the freezing of the appointments of substantive judges until after the implementation of the judicial reforms," said a lawyer, who spoke on condition of anonymity for professional reasons.
"In her court papers, Adv Sekoai unwittingly exposes the shortcomings of the JSC as it is currently composed as well as the manner in which it conducts its affairs.
"Instead of accepting Prof Mahao's argument that the JSC should be expanded to accommodate representatives of various stakeholders, she would rather have two people continue making crucial decisions such as recommending the appointment of judges.
"Instead of acknowledging the faulty JSC procedure which gives a chief justice two votes, she would rather Justice Mahase be given two votes to ensure the decisions of two JSC members become majority decisions. Where else in the world have you seen such a ridiculous procedure... ?" asked the lawyer, adding other African countries with comparable legal systems like South Africa, Zimbabwe, Botswana, Zambia, among others, have far bigger and more representative JSCs.
A cursory look at the composition of the JSCs of those countries bear out the expert's argument.
South Africa's JSC is much bigger than Lesotho's. It is more representative of various stakeholders.
It comprises of 23 members namely, the chief justice as chairperson, the president of the Supreme Court of Appeal, the judge president, the minister of Justice and Constitutional Development, two practicing advocates, two practicing attorneys, a professor of law, six persons designated by the National Assembly, four permanent delegates to the National Council of Provinces and four persons chosen by the state president.
In Zimbabwe the JSC comprises of 12 members namely the chief justice; the deputy chief justice; the judge president of the High Court; one judge nominated by fellow judges; the attorney-general; the chief magistrate and the chairperson of the Civil Service Commission. It also includes three practising lawyers with at least seven years' experience representing the law society; one professor or senior lecturer of law representing the teachers of law at Zimbabwean universities; one person who for at least seven years has practised in Zimbabwe as a public accountant or auditor and one person with at least seven years' experience in human resources management appointed by the state president.
In Botswana, the JSC comprises of six members namely the chief justice who is also the chairperson; the president of the Court of Appeal; the attorney-general; the chairperson of the Public Service Commission; a member of the Law Society nominated by the Law Society and a person of integrity appointed by the state president.
In Zambia, the JSC comprises of eight members namely the chairperson, appointed by the state president. This should be a person who holds or qualifies to hold high judicial office or has held high judicial office. Other members include a judge nominated by the chief justice; the attorney-general; the permanent secretary for public service management; a magistrate nominated by the Chief Justice; a representative of the Law Association of Zambia; the Dean of a law school and one member appointed by the state president.
Commenting on the issue, another legal expert said on the face of it, the Mahao-JSC tiff appears to be a straightforward case of the JSC fighting to preserve its independence which is seemingly under threat from a meddlesome executive.
"But the reality is different. It is specious argument to say that the JSC's independence is under threat from Mahao and the executive. We are talking here of just four JSC members. In fact, we are talking of just two people who want to retain unfettered freedom to make crucial decisions including the appointment of judges without any scrutiny and without answering to anyone.
"Adv Sekoai is saying it is ok for Mahase and Phoofolo to recommend five people who have zero experience trying cases while there are plenty of magistrates who, in some instances, have been dispensing justice for the past quarter of a century without any blemish on their records. Maybe Advocates Phoofolo, Sekoai and Justice Mahase know of a special reason why the likes of Adv Putsoane should be appointed ahead of the likes of Chief Magistrate ('Matankiso) Nthunya who have served for so long. But we can only know of that special reason if the JSC was first reformed to ensure transparency on the selection of judges as demanded by Prof Mahao.
"In other countries like South Africa, the JSC invites applications for vacant judges' posts and conducts live interviews which are broadcast to the public to ensure transparency and accountability in the appointment of judges.
"Even successive Zimbabwean despotic leaders Robert Mugabe and Emmerson Mnangagwa have (until now) allowed their country's JSC to hold public interviews as part of the selection process. But here we have the likes of Adv Sekoai crying foul and attempting to hide behind the independence of the judiciary when reforms are suggested to ensure transparency and accountability in JSC operations.
"The independence of the JSC that she speaks of is merely independence of two or four people at the most to make far-reaching decisions in secret without having to explain anything to anyone. The nation can only have confidence in the judiciary if its judges and other officials are the product of clear and transparent selection processes. As we speak, Zimbabwe is conducting public interviews to select judges for its Constitutional Court. We need the same here in Lesotho," the legal expert said.
His comments come at a time that Zimbabwe's JSC is interviewing candidates for appointment to the Constitutional Court. So far, the interviews are proving to be a robust, no-holds barred affair. On Monday, one of the aspiring candidates, veteran High Court and Supreme Court Judge Chinembiri Bhunu sweated as the JSC asked him why he should be appointed to the Constitutional Court when he has miserably failed to deliver judgments in some cases for as long as 15 years.
Justice Bhunu also failed to answer a question on how he would handle the pressure when trying election disputes involving a sitting president. He also embarrassed himself by failing to distinguish between constitutionality and constitutionalism when asked to do so.
"This kind of ruthless and robust public screening of potential judges is needed here in Lesotho to avoid situations where we appoint judges who will exhibit bias and incompetence in the handling of cases.
"We need an open and transparent process where the JSC will explain its choices particularly when seasoned magistrates like 'Matankiso Nthunya have been overlooked despite serving for 25 years," another lawyer said on condition of anonymity.
Incidentally, the same argument was raised by the magistrates. Operating under the banner of the Judicial Officers Association of Lesotho (JOALE), the magistrates last month wrote to the JSC, questioning why their members have been consistently overlooked for promotion as judges.
This despite that a significant number of magistrates have been dispensing justice in the lower courts for 10 years or more. Some like Chief Magistrate Nthunya have been magistrates for 25 years.
In his letter to the JSC, JOALE secretary Masopha Kao asked why relatively few magistrates have been appointed as judges over the years despite their qualifications and vast experience in dispensing justice in the lower courts. Magistrate Kao also noted that there have not been any dismissals of magistrates for incompetence, suggesting that they have acquitted themselves well over the years.
Another lawyer, Adv Kelebone Maope, said it was necessary to hold the process of recruiting full-time judges in abeyance until after the implementation of judicial reforms to expand the JSC as well as ensure transparency and accountability in its operations.
"Although the JSC is an independent body, it still has to communicate with the government on crucial issues such as the nomination of judges.
"The JSC is part of the government and various arms of government should work together to ensure good governance," Adv Maope said.
He also questioned how two out of four JSC members could be said to be a quorum. He said no explanations had been given regarding the absence of the other two JSC members, adding the entire nomination process was shrouded in secrecy which could only be rectified by the implementation of new laws in terms of the judicial reforms.
Indeed, the current laws do not require the JSC to get the government's approval for the nomination of prospective judges.
But as pointed out by the analysts, any law which allows just two JSC members to make such crucial recommendations is a bad law and needs to be repealed or amended.
Any law which provides for the establishment of such a narrow, unrepresentative JSC consisting of only four members needs to be amended to provide for a broader and more inclusive JSC which is representative of all stakeholders including the Law Society of Lesotho, law lecturers, magistrates, the legislature, civic groups, among others