FORMER interim Prime Minister and prominent lawyer, Haae Phoofolo, was on 8 February this year appointed the new Attorney General. He has been in the office for just over four months and he says that the country’s justice delivery system is dogged by many challenges among them the huge back log of cases at the courts. In this wide-ranging interview, Advocate Phoofolo (AG) speaks to the Lesotho Times’ ’Marafaele Mohloboli (LT) about his office and other challenges that country’s justice delivery system is facing.
LT: You have been in the hot seat for several months now, what have been the major highlights of your tenure so far?
AG: Yes, indeed it is a hot seat. Not comfortable at all particularly during these fast-moving times when this country is gearing itself for Constitutional Reforms.
I joined the office of the Attorney-General (AG) in February this year. Although the man whom I succeeded had left the office many moons before my arrival, I was fortunate enough to find an acting AG who has been the Deputy AG there for many years.
A man whose knowledge of the ins and outs of that office was near impeccable. So, I took over from him an office that was still functioning well and responsibilities still carried on efficiently.
Coming to the major highlights of my tenure so far it will not be right to put feathers in my cap so soon after being given this big responsibility by the nation.
It makes a lot of sense to say that when one is new in an institution like myself, one should first engage in a studying process because even though the terms of reference of that position may be clear, joining such an office is not like starting a new institution from the cradle.
The office of the AG is a statutory institution established in the early 80s. So, it has survived the best of times and working one’s way around, trying to know practically what is expected of the leader like myself, new in that office is a mammoth task.
LT: Would you kindly make us better understand the functions of your office and their translation into our day to day living as a people.
AG: The main function of the office of the AG is to provide legal advice to the government. This is in accordance with the constitution and other relevant statutes. That in my view presupposes two main essentials. The first is independence of the mind and the second is objectivity.
It is not an easy task to advise the government if these two cardinal attributes are lacking in a person whose advice is sought. This is because objectivity and independence ought to be translated into visible actions on the ground.
Now the government that the attorney general ought to render legal advice to consists of the Executive, Legislature and the Judiciary. Providing legal advice to those three arms of the government is like steering one’s way in rough and stormy seas where the waves often try to force you off your course if maintenance of independence of the mind and objectivity are lacking.
Let me throw in an example which might explain what is meant here, and this brings me to the question of the challenges that have come my way since I assumed duty in that office. Every informed citizen now knows that there is some tension presently between the Judiciary and the Executive.
One can safely call this a power struggle where two bulls in a kraal try to establish or wield authority over the other. As a consequence, the grass is now suffering.
The apex court is not functioning. The high court is busy engaging in law suits involving people who should be resolving the law suits from the public.
In all this mess every bull raises the Constitution as its weapon against the other. Everyone can see what a challenge this is to the office of the AG in trying to keep its position as independent and objective as possible in helping all sides to the conflict to end up with a solution beneficial to this country and not necessarily to the satisfaction of the feuding individuals.
LT: Which are the high-profile cases your office has dealt with so far?
AG: I have never been comfortable with the description of some court cases as high-profile. Our constitution maintains the principles of equality before the law and equal treatment of all persons by law.
Meaning that the law should apply equally to all persons irrespective of this status in society. You see a case may fit the description that it is high-profile because the accused involved may be a notorious criminal, or the crime committed is of such magnitude that it is unusual in this country, or because a person or persons involved are of high social standing. It is therefore difficult to know where to draw the line.
What here in Lesotho is commonly referred to as high profile cases that the courts are handling presently are those involving former military men who are charged with committing some crimes against humanity to the citizen. They are 10 in number.
Then you have matters of a civil nature involving civil suits and disputes which are not easy to qualify without proper statistics at hand. Some of these cases involve several diplomatic representatives in foreign countries where the Attorney General’s office was instructed to institute legal proceedings that would compel them to return dome and give way to new diplomats abroad.
And I would rather not single them out.
LT: Take us through the process of preparing for a court case. How different is to prepare for a high-profile and an ordinary case?
AG: Like I said it is something of a misnomer to refer to a case high-profile and the other as not. As a lawyer, I cannot even utter the words “high-profile case” to a judge presiding over a case before him. Even my preparation for a case should not depend on how high or low profile such a case is. I must treat all persons equally before the law. There is an exception to this statement though. A case may be so serious, and the result there might affect the community so largely that it would require extensive preparation in order to assist the court to come to an informed decision on it. To that extent the said case might even require engagement of lawyers with particular skills and expertise on the subject matter of the case. This might be the case mostly in constitutional law matters as they involve usually personal or community rights.
LT: Please provide statistics of cases before the courts. How would you explain the huge backlog of cases?
AG: Regarding the matter of backlogs of cases before the courts, please allow me to refrain from commenting about it.
As you can recall this is one of the accusations levelled against the Honourable Chief Justice in the impeachment trial she may face in the future.
I can’t even venture to provide any definite statistics on the matter at this stage, since it could be a matter for aggravation in case she is convicted, or shall I say “found guilty”.
It is sufficient to say that there are many untried cases, some of which belong to a number of the past years. The situation has become so bad that people are now suing judicial officers for delaying to deliver judgments in their cases.
As far as criminal matters are concerned we might soon get applications for release or permanent stay of proceedings in their trials.
This situation is not good for our country in the face of the international community, mostly our cooperation partners. It places our human rights record in bad stead. The whole thing has gone on for so long that it has become a norm rather than an exception in Lesotho.
During my practice days in the South African Courts, I cannot remember a single day when I saw an empty court from 9:00 am till late afternoon. But in Lesotho you will no doubt see an empty one every day. Either a judicial officer, a prosecutor or lawyer is not there.
I just heard that the High Court will soon be going on a winter vacation. I never heard of that in South Africa. What really necessitates such need in Lesotho, I really do not know.
LT: Judicial reforms are part of the package of multi sector reforms that Lesotho should implement. What would you want to see being implemented?
AG: The Reforms is in the mouths and heads of our population lately. Legislative, security, judicial sectors and the like. I do not see the need for large scale reforms in any of these sectors as if this country just woke up from the Stone Age to Civilisation. What are referred to as reforms I prefer to call “updating”.
In confining myself to the judicial sector, one example where “updating” is required comes to my mind. That is the practice of having a Chief Justice and President of the Court of Appeal should be abolished.
There should be only one head of the judiciary who should be the Chief Justice under whose administrational courts and tribunals fall. Another example is the Judicial Service Commission (JSC) whose membership is composed of the Chief Justice as the chair, a judge of the High Court, the Attorney General and Chairman of the Public Service Commission.
Four people only and the funniest thing about it is that two people make the quorum. The constitution in regards to the JSC must be changed to increase the membership so that it becomes representative of a larger sector of other stakeholders such as lawyers and others.
LT: How is the working relation and cooperation like between the office of the Director of Public Prosecutions and your office?
AG: In terms of the Constitution, the AG “exercises ultimate control over the Director of Public Prosecutions”. But we must remember that the office of DPP is fully independent in the performance of its functions. It is not subject to any person’s control or authority but ultimately and for its actions, the AG takes responsibility. So, the DPP and I should be in constant consultations for the smooth running of the business and responsibilities of our respective offices.
LT: In April the government indicated to Southern African Development Corporation (SADC) that arrests will soon be made in treason cases and your office should prepare charges. When are we likely to see suspects go to court?
AG: once all investigations have been completed in the alleged treason matter, the DPP will decide if, when and how to proceed. I think it is best to leave the decision in this regard only with her.