MASERU — Last week an organisation called the Lesotho Lawyers for Human Rights (LLHR) asked Prime Minister Tom Thabane to start the process of impeaching Chief Justice Mahapela Lehohla.
The call came after the chief justice allegedly blocked High Court judges from hearing cases in the Court of Appeal.
Court of Appeal President Justice Michael Ramodibedi was forced to cancel the court’s January session.
This week we spoke to LLHR President, Zwelakhe Mda, about the crisis in the judiciary and what he thinks is the solution.
LT: Who do you think should be blamed for the current crisis in the judiciary?
MDA: I have no doubt in my mind that the blame lies squarely with the chief justice. It’s him who should be blamed for the crisis we have.
LT: Why do you say that?
MDA: There are clear problems for which he has to take the blame.
You see, for a long time there has been this unfortunate tendency of blaming every problem in the judiciary on the issue of seniority.
Yet as a lawyer himself, the chief justice knows that if he has a problem he can approach the court.
There is precedence of judges who have approached the courts.
The chief justice should know this as a lawyer. If he has an issue with the protocol rank then he can approach the court. Why hasn’t he done so?
LT: So you are saying the notion that the current problems are a result of the fight over seniority is wrong.
MDA: Precisely so. It is not about seniority. It is about the responsibilities and behaviour of the chief justice.
It’s about how he has failed to perform his duties and how badly he has behaved.
We are talking about the incident in Mohale’s Hoek during the King’s birthday celebrations and his failure to hear cases.
We are talking about how he has sabotaged the Court of Appeal session of January.
LT: But this is a rivalry and a rivalry has two sides. The chief justice is not fighting himself but the Court of Appeal president.
Surely the Court of Appeal President has played a part in this crisis.
MDA: I cannot see the blame.
I still have to be shown that blame.
This time the blame lies with one man.
I see the failings of one man and that man is the chief justice.
LT: The Law Society of Lesotho is the one which recommended the appointment of the Court of Appeal president. You were the law society president at that time. Surely there is no way you can castigate a man you recommended. Are you not compromised?
MDA: Far from it. On the contrary, we have been vindicated.
He has done very well. He has served the profession with distinction.
I must point out that as a lawyer I am yet to see a law report that says the chief justice was arguing cases.
I stand to be corrected but I am yet to hear of any case that he argued as a lawyer before a judge.
The chief justice has no judicial history like other chief justices all over the world.
LT: Do you mean the chief justice’s lack of practice history is part of the problem?
MDA: Precisely. I am told he practised in the law firm of my father but I am yet to come across a case he argued before a judge.
I have not seen any judgment that says he was representing anyone as a lawyer.
And this is serving as a warning to the executive.
The next time they want a chief justice they must look at the history of the candidate not political correctness.
Governments come and go but the judiciary will always be there.
They must appoint people on merit and quality.
LT: You seem to believe that if the chief justice goes the crisis in the judiciary will be over. Aren’t the problems in the judiciary bigger than that?
MDA: We are saying the chief justice has been identified as the immediate problem.
He is the administrator.
His failings are clear for all to see. I personally have not come across anyone who says the chief justice is doing well.
The judiciary is bigger than the Court of Appeal president and the chief justice.
The problem now is that the chief justice has become bigger than the judiciary as an institution.
The protection and security of tenure that judges enjoy under the constitution is not for their personal benefit but the people of this country.
LT: Are you saying the chief justice is not competent to hold the office he has?
MDA: I am saying the issue of competence is very important.
We are not interested in personalities but how a person performs their duties.
LT: What kind of a chief justice do you want?
MDA: We want someone who understands the law and their core functions as a senior judge.
He should be a jurist of eminence.
LT: You are talking about the quality of the chief justice we have.
Does that also reflect on the quality of the judges we have on the bench?
MDA: Yes. Because if he does not have the competence he cannot, as the chairman of the Judicial Service Commission, identify competent people to be on the High Court bench.
He was never an eminent lawyer.
I must make it clear that I am not insinuating that the bench is staffed by incompetent judges.
LT: In your letter to Prime Minister Tom Thabane you said if he does not start the process of impeaching the chief justice you will seek other avenues to get the chief justice removed.
What are those avenues?
MDA: We are talking about the constitution of this country.
The office of the prime minister is a creation of that same constitution. So is the office of the chief justice.
The constitution provides a road map on how a chief justice can be removed.
A chief justice can be removed if he has misbehaved or failed to perform his duties.
The prime minister is obligated to act when that happens.
We are saying this has already happened and the prime minister must act.
If he does not act then he will be compelled by the courts to act.
LT: But you said the same thing a couple of years ago when you were still president of the law society.
You called on the then prime minister to remove the chief justice but nothing happened. What guarantee is there, this time, that the current prime minister will heed your call.
MDA: This time it’s different. We have never approached the executive like we have done now.
We have never said if the prime minister does not act then we will act.
You must also realise that there is a cumulative effect.
Nowhere in the world has the apex court been stopped by a chief justice.
This time we are clearly saying that if the prime minister does not work then we will.
The prime minister has an obligation to act.
He has to act. It will be embarrassing if the prime minister does not act on a chief justice who has misbehaved and failed to perform his duties.