Lesotho: Court Blow for Mahao

Judge's gavel (file photo)
4 November 2020

The Constitutional Court on Monday dismissed Law and Justice Minister, Professor Nqosa Mahao's application for an order compelling the Judicial Service Commission (JSC) to furnish him with the records of its 20 August 2020 proceedings which culminated in the nomination of five new High Court judges.

The court also dismissed Prof Mahao's application for an order compelling the Independent Electoral Commission (IEC) to deregister the White Horse Party.

The net effect of the dismissal of Prof Mahao's prayers for interim reliefs is that the Constitutional Court will now proceed to hearing his application for final reliefs.

In terms of final reliefs, Prof Mahao wants the court to nullify Acting Chief Justice 'Maseforo Mahase and Attorney General Advocate Haae Phoofolo's recommendations for the appointment of five new judges by His Majesty King Letsie III.

Prof Mahao further wants the court to order the JSC to reconvene with all its four members and nominate judges for appointment by King Letsie III.

Justice Mahase and Adv Phoofolo met in their capacity as JSC members on 20 August 2020 and recommended that His Majesty appoints Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha as High Court judges.

But the quintet has still not been appointed with authoritative government sources saying 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 without the input of other JSC members. The other two JSC members are Public Service Commission (PSC) chairperson Moshoeshoe Sehloho and High Court Judge Sakoane Sakoane.

Early last month, the little-known White Horse Party waded into the issue by filing a Constitutional Court application for an order compelling King Letsie III to appoint the five as judges in line with the recommendations of Justice Mahase and Adv Phoofolo.

The political outfit also petitioned the court to interdict Prof Mahao from interfering with the independence of the JSC.

But Prof Mahao fought back late last month by filing a counter-application for the nullification of Justice Mahase and Adv Phoofolo's 20 August 2020 meeting and their subsequent recommendations for the appointment of the five as judges.

The JSC, White Horse Party, King Letsie III, High Court and Court of Appeal Registrar Adv 'Mathato 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.

In his interim prayers, Prof Mahao wanted the court to furnish him with the record of the JSC's proceedings and or correspondences which informed the entire process which culminated in the recommendation of the appointment of the five as judges.

He wanted 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 also petitioned the court to deregister the White Horse Party which he said had not been properly registered as a political party and therefore had no legal standing to file an application against him with regards to the appointment of judges.

His lawyer, Monaheng Rasekoai, pleaded with the court to order the JSC to reveal the names of the five who had been nominated as judges as well as the criteria used to select them. Mr Rasekoai argued that the appointment of judges was a matter of public interest which could not be conducted in secret. He also asked the court to join the five nominees to the proceedings as respondents, saying they would also be affected by the judgement.

However, the JSC's lawyer, Adv Salemane Phafane, counter-argued that the JSC could not provide the records of its proceedings or make them public because its rules prohibited it from doing so. Adv Phafane said only the JSC and the King had any business in the recruitment and appointment of judges. He was instructed by Mr Qhalehang Letsika.

The Constitutional Court bench comprising of Justices Tšeliso Monapathi (presiding), Moroke Mokhesi and Keketso Moahloli dismissed the interim prayers for the release of the JSC proceedings.

Announcing the verdict on Monday, Justice Mokhesi said "the interim relief for dispatch of records is refused for the simple reason that the purpose for which the record is being sought is for it to reveal the names of the shortlisted candidates, the persons who nominated them and the criteria employed in nominating them".

"Regarding their names, Mr Letsika submitted that the candidates have not yet been appointed and we agree with him that due to the fact that they have not been yet appointed, their interest is not direct and substantive and therefore this matter can proceed without knowing their names.

"But as regard to persons who nominated those candidates, we now know in terms of the affidavit of the registrar (Adv Sekoai) that nobody nominated the candidates but they were headhunted. We are therefore of the view that the record of the proceedings will not serve any purpose given that it will not reveal the persons who nominated the individuals because they were headhunted.

"As for the criteria (for recommending judges' appointments), it is provided in terms of section 118(3) and our considered view is that the JSC acted on that section. The interim relief regarding the dispatch of records of JSC proceedings is therefore refused."

The judges also refused to grant Prof Mahao's application for the deregistration of the White Horse Party, saying they only wanted to deal with the matter concerning the appointment of the judges and any other issue had to be dealt with in a separate court application.

"We are also going to decline to exercise our powers to hear reliefs regarding deregistration of the White Horse Party. We are inclined to having this matter heard on the constitutionality of the appointment of judges and nothing else.

"If there is anybody having an issue with the White Horse Party being a party in a proper sense, separate proper proceedings should be instituted in that regard," the Constitutional Court ruled.

Following the dismissal of Prof Mahao's prayers for interim reliefs, the Constitutional Court will now proceed to hear his application for final reliefs.

The proceedings will be heard on 6 November 2020.

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