MASERU — The Judicial Services Commission (JSC) has blocked the appointment of another Court of Appeal judge as the bitter standoff between Lesotho’s top judges continues.
The commission, which is chaired by Chief Justice Mahapela Lehohla, told Court of Appeal President Justice Michael Ramodibedi that it had been “practically impossible for it to recommend to His Majesty the appointment of any” of the judges whose names he had submitted for consideration.
Justice Ramodibedi had submitted the names of Justice S A Moore from Guyana and Justice Wilfred Thring, a retired Cape Town High Court judge, for consideration as judges of the Court of Appeal.
The commission was supposed to choose between the two judges to replace Justice John Smallberger who has retired.
The standoff is a tip of the testy relationship between the top judges who are locked in a bitter fight over who is senior.
In a letter dated December 12, 2012, seen by the Lesotho Times, the JSC secretary Lesitsi Mokeke stated five reasons why Justice Ramodibedi’s preferred candidates would not be taken.
Quoting section 132(8) of the constitution, Lesitsi said “the commission shall not be subject to the control of any other person or authority”.
“Your Lordship’s expressed preference for Mr Wilfred Thring over Mr Justice SA Moore runs counter to the spirit and purpose of this important constitutional provision as it seeks to unduly influence the decision of the commission,” Mokeke writes.
“Your Lordship’s unwarranted preference is accentuated by the expressed involvement of other judges of Appeal who should not have anything to do with directly or indirectly having a hand in the process of the Judicial Service Commission’s deliberations concerning which candidate is suitable,” he said.
The commission’s second reason for rejection of Justice Ramodibedi’s preferred judges was that Justice Moore held a political position in Guyana between 1981 and 1982 as a cabinet minister of home affairs.
“I am directed to inform Your Lordship by the commission that candidates who at any point in time occupied political positions would not be considered for appointment as judicial officers in observance of the sacrosanct constitutional principle of the separation of powers in Lesotho,” Mokeke said.
The third reason was that for the purpose of transparency CVs of at least three candidates were required but Justice Ramodibedi had submitted only two.
Mokeke said the disqualification of Justice Moore on grounds of political activity would leave Justice Thring as the only candidate and the commission would have “no option but to simply rubber stamp the expressed preference indicated in your correspondence dated 24th October, 2012.”
“This eventuality is not only shunned by the Judicial Service Commission, but, if allowed would smack of total failure in its duty to recommend in sincerity and truth, to the King, a candidate deemed suitable in a fair competition.”
The fourth reason was the wholesale policy adopted by the government towards localisation of services including that of the Court of Appeal “and strongly recommends that Your Lordship should cast your eyes in the region, Lesotho included, for consideration of two additional candidates.
Mokeke said the commission strongly recommended candidates “that are well conversant with the Lesotho customary law”.
“It would be fair in the commission’s view for Mr Thring to compete with worthy candidates rather than letting his suitability be guaranteed by yoking him to a stalking horse,” Mokeke said.
Lastly, Mokeke said the commission “reserves its right to call all the candidates for an interview before its recommendation for appointment is made to His Majesty.”
Responding to Mokeke’s letter, Justice Ramodibedi expressed shock over allegations that he was trying to influence the decision of the commission.
“I cannot believe that the commission would make such serious allegations against the president of the highest court in the country,” Justice Ramodibedi said in a letter dated December 21.
Denying that he imposed his will over the commission, Justice Ramodibedi said he understood “full well the important constitutional role which the commission plays”.
He said it is a tradition developed over decades in the Court of Appeal whereby identification of a suitable candidate for appointment is a process shared by all judges acting together.
“It is for that reason that we have to date been able to maintain the Court of Appeal as a court of excellence,” he said.
“This of course has been made possible with the cooperation of the Judicial Service Commission over the years.”
He said the Constitution, section 132(8), does not preclude the president and the judges of the Court of Appeal from making a suitable recommendation to the Commission.
Concerning the commission’s view on Justice Moore’s political past he said the commission is wrong.
“The starting point is section 124(3) of the Constitution.
“There is nothing in that section to suggest that a person who once held a Cabinet post, more than 33 years ago, in a foreign country, may not be appointed as a judge,” he said.
“It is for that reason that Mr Justice Moore served in the Court of Appeal of Botswana from 2004 to 2012.
“Similarly, he is a currently valued judge of the Supreme Court (formerly Court of Appeal) of Swaziland.”
Justice Ramodibedi argued that if the commission’s viewpoint was to be followed “we would disqualify from appointment such eminent lawyers as Mr Kelebone Maope KC and the Honourable Mr (Haae) Phoofolo, the current Minister of Justice.”
Justice Ramodibedi brushed aside the commission’s argument that at least three CVs should have been submitted.
“Your own records will show that we have never had to produce two CVs per position,” he said.
“The figure for the alleged long standing practice has now suddenly jumped from two to three.
“As I repeat, there was never such a practice.”
Justice Ramodibedi then submitted two new names, Justices A M Ebrahim and P Levinsohn, Supreme Court judges in Swaziland where he is the Chief Justice.
Justice Ramodibedi said he is equally committed to localisation of the Court of Appeal judges.
“It is for that reason that I have identified certain judges for ‘training’ for the eventuality.”
Concerning the commission’s right to interview candidates he said: “It is interesting to note, however, that no Judge in the Court of Appeal (I suspect in the High Court too) has ever been interviewed for appointment.”
He copied the letter to Prime Minister Thomas Thabane and Justice Minister Haae Phoofolo.