Mahao, Mahase in tug of war over judges’ appointment
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Dust rises as a battle of the titans erupt between Minister Constitutional Affairs, Law, Human Rights, Correctional Services and Justice, Nqosa Mahao, and Acting Chief Justice ’Maseforo Mahase over judges appointments.
This is after Mahase, in her capacity as the Chairman of the Judicial Service Commission (JSC) convened a meeting that decided on the names of candidates to be presented to his Majesty the King for appointment as judges of the High Court of Lesotho in order to fill five vacancies in the judiciary.
But it is this last week’s alleged secret meeting which Professor Mahao argues should have been disclosed to government and proper processes be undertaken to ensure right candidates are appointed into the office or just Acting Judges as the country is undergoing a reforms process.
The commission, according to the Constitution of Lesotho section 132, made up of the Chief Justice who sits as the chairperson, the Attorney General Chairman of the Public Service Commission or a designated proxy, and a member appointed from amongst persons who hold or have held high judicial office who shall be appointed by the King acting in accordance with the advice of the Chief Justice and is referred to as the appointed member.
The registrar of the High Court and Court of Appeal sits in the JSC as its secretary.
Mahao said after learning about the sitting of the JSC, he called the Registrar of the High Court and Court of Appeal Mathato Sekoai who confirmed the sitting indeed took place and confirmed nominees for appointment as judges have been completed.
Mahao told a press conference Sekoai when quizzed why his office was not informed, answered in a manner he cannot disclose to the public.
But in a separate press briefing following Mahao’s utterances, Sekoai said appointment of judges is the sole responsibility of judicial service commission and is set out clearly in the constitution of Lesotho.
She said section 120 (2) puts the selection of judges in the hands of the JSC only and also noted who makes the JSC.
She said the JSC is constitutionally a four-member commission that when undertaking its business shall not be under control or influence of anyone but be guided by the constitution of Lesotho and the commission has powers to make its own rules of operations.
She also said the existing rules of JSC, provide in rule 10, that when discharging its duties the JSC cannot be influenced by anyone or its member be influenced. She said members of the commission should not be influenced prior to sittings of the JSC and rules also provide that if a member of the JSC is influenced prior to meetings of the JSC, that is a punishable offense.
Sekoai relentlessly said the JSC can make an appointment of judges where there is a vacancy or in the absence of its member in terms of the constitution amid Mahao’s demands.
She further went on to say the JSC can also in line with its rules hold its meetings with only two members present.
She said rule six binds members of the JSC to secrecy and no one should disclose the dealings and or work of the commission.
She said when done with its work, his Majesty the King makes an appointment on the advice of the JSC.
What has been done by the JSC, Sekoai said is only to make a recommendation for appointment by the King, and names of the persons to be appointed will not be disclosed.
She said Mahao has no role whatsoever in the appointment of judges as the JSC is an independent body and there is nothing in the appointment that concerns the Minister until after the King has made the actual appointment of judges.
However, Mahao insists he should have at least been informed if not by the JSC then by the Attorney General Haae Phoofolo whom he said has his office adjacent to his at the Government complex.
“When I met the Attorney General, he never even hinted that they had undertaken such a mammoth task,” said Mahao.
Mahao said this was the fourth government since 2014 that had been flaunted the idea of national reforms in the country and yet each government had fallen short where action and implementation is concerned.
“It is our responsibility that the matter of reforms must be taken seriously and it starts with this government,” Mahao said.
He said government’s vision was for judges to be selected based on their individual talents and credentials after undergoing a selection process by the Judicial Services Commission, regardless of the fact that the Constitution currently states that “judges shall be appointed by the King, acting in accordance with the advice of the Judicial Services Commission”.
Mahao said he felt that if the current government did not remove the inclination of political influence from the selection process of the judiciary, no other government would feel inclined to do so, citing past governments removing or replacing members of the judiciary as and when they pleased.
He stated that the judiciary has been a very unstable institution of late and the instability usually runs parallel with the country’s political instability.
Mahao expressed that, although the JSC is well within its rights to select judiciary members as they have done in the past, the current JSC is narrow and is not representative of the vast numbers of stakeholders where the law is concerned.
He went on to say that the JSC could now be made up of attorneys or lawyers, “law school lecturers”, as well as other interest groups which could include a representative from the Parliament and all this “which will be part of the new law”.
He said because the JSC was made up of four people, in this day and age, it would be beneficial to have more voices involved in the selection of judges, which is why the JSC’s identification of judges came as such a shock and needed to be amended as soon as possible.
Mahao explained that in the governance of a country, there are three branches, the Executive, the Judiciary, and the Government. All three of these branches work together by using a system of checks and balances on each other.
“It is the Judiciary’s job to stop the Executive where they have made a mistake, it does that through judgments of the court.
“It is the Parliaments job to stop the Judiciary or the Executive where they have made a mistake by amending laws or overruling administrative decisions made by the Executive.
“And it is the Executive’s job to stop the Judiciary through administrative action…” he said.
Mahao further stated that he does not know the names of the nominee judges the JSC has chosen, though it does not matter as the situation at hand is about the principle of the matter and not the names chosen by the JSC.
Mahao explained that the bodies present at the JSC’s decision were the Acting Chief Justice and the Attorney General and although the Attorney General did not inform the government of the decision that was about to be made.
“We are in consultations with government leaders. When such consultations are completed, we will know who the issues of appointment of judges are rectified. What I do know is that a mistake had happened, and when a mistake has been made it must be rectified,” He said in response to what would be done to rectify the decision made by the JSC.