THE four-member Judicial Service Commission (JSC) has split right down the middle.
This after one of its members, Public Service Commission (PSC) chairperson Moshoeshoe Sehloho, distanced himself and the other JSC member, High Court Judge Sakoane Sakoane, from a controversial decision by Acting Chief Justice 'Maseforo Mahase and former Attorney General Advocate Haae Phoofolo's decision to recommend the appointment of five new High Court judges. Mr Sehloho charges that the purported appointments of the five are null and void because they were done without the input of the other two members of the JSC. His statement reveals the opaque and untransparent manner in which the all too important JSC has run critical judicial affairs.
Mr Sehloho practically accuses Judge Mahase and Adv Phoofolo of essentially rigging the appointments process outside the legal norms of the JSC. He and Judge Sakoane had not been given an opportunity to review the CVs of the prospective candidates before the meeting at which they were appointed, he claims. Previously, the JSC had appointed a single judge from a shortlist of at least three candidates. This means 15 candidates should have been considered before the five were recommended for appointment by Justice Mahase and Adv Phoofolo. All that had not been done. Judge Mahase and Adv Phoofolo's decision was thus illegal and illegitimate.
Mr Sehloho makes his tough remarks in an affidavit supporting Law and Justice Minister Nqosa Mahao's counter application to have Judge Mahase and Adv Phoofolo's decision set aside. Prof Mahao launched his counter application this week in response to a bid by an inane political party, calling itself the White Horse Party to have the five candidates appointed by King Letsie - as per the duo's recommendation - and to have Prof Mahao interdicted from interfering with the work of the JSC.
Justice Mahase and Adv Phoofolo met in their capacity as JSC members on 20 August 2020 and recommended that His Majesty King Letsie III appoints Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha as High Court judges.
But up to now the quintet have still not been appointed. Authoritative government sources told the Lesotho Times that King Letsie III declined to appoint them 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.
Even before the King had rejected the recommendations, Law and Justice Minister Professor Nqosa Mahao had already criticised Justice Mahase and Advocate Phoofolo for "meeting in secret" and making the recommendations without consulting him as the responsible minister.
Prof Mahao said the duo did not even constitute a quorum of JSC members.
He said their actions were not only illegal, but also contrary to the government's stated commitment not to appoint any new judges until after the implementation of the judicial reforms expected to foster a transparent process in the appointments of top judicial officials.
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 other countries.
But the JSC, through its secretary, Adv 'Mathato Sekoai, had hit back at Prof Mahao arguing there was nothing amiss about Justice Mahase and Adv Phoofolo sitting on their own and nominating their five candidates.
Adv Sekoai also said the duo had formed a quorum when they met to make the recommendations to appoint the five without the participation of the other two JSC members; Mr Sehloho and Justice Sakoane.
The JSC comprises of four members, namely the chief justice, the attorney general, the chairperson of the PSC and a nominated judge.
Adv Sekoai even filed an affidavit last week on behalf the JSC in support of a Constitutional Court application by the White Horse Party to compel the King to act on the JSC's recommendations and appoint the five as judges.
The little-known political outfit also wants Prof Mahao to be interdicted from interfering with the work of the JSC and its independence.
But in a new turn of events this week, Mr Sehloho distanced himself and Justice Sakoane from Justice Mahase and Adv Phoofolo's 20 August meeting and subsequent recommendations for the appointment of the five prospective judges.
Mr Sehloho has instead thrown his weight behind Prof Mahao in his counter-application to have Justice Mahase and Adv Phoofolo's recommendations nullified.
In his affidavit filed in support of Prof Mahao's counter application, Mr Sehloho accuses Justice Mahase and Adv Sekoai of blind-siding him and Justice Sakoane by failing to give them the list of candidates and their curricula vitae (CVs) as is the standard practice before the JSC sits to nominate people for appointment by King Letsie III.
He said he believes that there was collusion between Justice Mahase and Adv Sekoai to deliberately withhold the names of the candidates and other vital information from him and Justice Sakoane, hence his decision not to attend the 20 August 2020 JSC meeting where the decision to appoint the five was reached.
Justice Sakoane did not attend the meeting as well. He has not filed an affidavit though Mr Sehloho's own makes it clear the judge was also sidelined in Judge Mahase and Adv Phoofolo's opaque process.
Mr Sehloho contends that Justice Mahase and Adv Sekoai's refusal or failure to give him and Justice Sakoane the list of candidates invalidated their meeting and its decisions from the very start.
He said he had therefore sought Prof Mahao's intervention to stop the "illegal" actions of the two.
"On the Tuesday preceding the Thursday (20 August 2020) meeting of the JSC, I received a package that usually precedes the official meetings and I immediately went through the agenda," Mr Sehloho states in his affidavit.
"I then observed that there was an agenda item for the recommendation of appointment of judges. No names were reflected for consideration and there were no particulars of the proposed judges for consideration.
"I then called the fourth respondent (Adv Sekoai) requesting to be furnished with the names and particulars of the prospective candidates for consideration and their curriculum vitae (sic).
"She (Adv Sekoai) responded by stating that she and the acting chief justice were busy photocopying the curriculum vitae (sic) of each of the mentioned candidates ... I waited in vain for the documents and began to develop a suspicion that there was an ulterior motive.
"I then called another commissioner - Justice Sakoane - and asked him if his dossier was similar to mine and he replied in the affirmative. I then became suspicious of the motives behind the non-inclusion of the names of the recommended candidates and their curriculum vitae (sic). I was then led to the conclusion that the fourth respondent (Adv Sekoai) and the chairperson (Justice Mahase) knew the names well in advance whilst the other commissioners did not know them."
Mr Sehloho states that he continued to seek the names and CVs of the proposed candidates right up to the day of the meeting. He was repeatedly told that the information was still being printed.
It was on this basis that he decided not to attend the JSC meeting because he felt he could not deliberate on an issue of that magnitude without being given the opportunity to study the candidates beforehand.
He said the secrecy surrounding the nomination of the candidates was unprocedural and therefore invalidated the final decisions by Justice Mahase and Adv Phoofolo.
"In previous instances when we appointed judges... , it was an established practice that for each position there be three candidates. If the required judges were five in number, it meant there had to be a total of 15 candidates for consideration...
"I am oblivious of the entire process that eventually led to the recommendation criteria that was employed in selecting the five candidates... My understanding of the situation is that the candidates for the selection and consideration for appointment are not and cannot be a secret.
"The chairperson and the secretary made it practically impossible for me to exercise my constitutional obligation meaningfully and neither was my concurrence sought for the recommendations to be made.
"I then called the Minister of Law and Justice requesting him to intervene as the secretary (Adv Sekoai), evidently in collusion with the chairperson of the JSC (Justice Mahase) were acting contrary to the required standards and the law," Mr Sehloho states.
Justice Mahase and Adv Sekoai are no strangers to controversy.
Justice Mahase was roundly criticised by Prof Mahao and other members of the ruling All Basotho Convention (ABC)'s national executive committee (NEC) for her alleged bias in favour of ABC leader and then Prime Minister Thomas Thabane in court battles for the control of the party. She had even sought to bar Prof Mahao from contesting for the post of deputy leader. That decision, like many others, was overturned on appeal.
Early this year, she was again accused of snatching a case in which Mr Thabane's murder-accused wife, 'Maesaiah, had applied for bail. She had been charged with the 14 June 2017 murder of her husband's ex-wife, Lipolelo.
The bail application was supposed to be heard by Justice Keketso Moahloli but Justice Mahase usurped the case and unprocedurally granted 'Maesaiah bail. Her bail decision was also overturned on appeal. All her decisions involving the Thabane couple and many others have been overturned by the Court of Appeal.
Adv Sekoai, who is also the registrar of the High Court and Court of Appeal, was suspended from the post in 2012 and only resumed her duties in January this year. She was suspended after High Court judges complained to then Chief Justice Mahapela Lehohla over the manner in which she dispensed her duties.
In a scathing 2012 letter to Justice Lehohla, the judges said Adv Sekoai's conduct was "most discourteous at times, disrespectful and unhelpful, oftentimes downright arrogant".
But it is the decision to appoint the five judges that has petrified all and sundry. Analysts have roundly condemned the decision. They have called for a reconfiguration of the JSC to make it more representative of society. They have also backed Pro Mahao's stance that all appointments should wait until the completion of the reforms process, expected to create a new transparent procedure of appointing judges and the chief justice.