…three-member tribunal to try her on misconduct charges
PRIME Minister Thomas Thabane has indefinitely suspended Chief Justice Nthomeng Majara from office.
The suspension, effective from 11 September 2018, paves way for a three-member tribunal to try Justice Majara over a litany of misconduct charges including her alleged failure to ensure the timeous delivery of justice, the Lesotho Times can reveal.
His Majesty King Letsie III, on the advice of Prime Minister Thabane, has since appointed High Court judge, Justice ‘Maseforo Mahase, as the acting Chief Justice. King Letsie has also appointed three experienced judges from Uganda, Tanzania and Zimbabwe to the tribunal to hear the misconduct charges against Justice Majara.
The three members of the tribunal are Ugandan judge Frederick Egonda-Ntende (who was appointed Seychelles Supreme Court Chief Justice in 2009), Tanzanian judge Augustino S. L. Ramadhoni (who was elected to the African Court on Human and People’s Rights in 2010) and Zimbabwe’s former Minister of Justice and High Court Judge Simbi Mubako.
The Attorney General, Haae Phoofolo, yesterday confirmed the latest developments in the long-drawn out case between Dr Thabane and Justice Majara.
“It is true that His Majesty King Letsie III, acting in accordance with the advice from the Prime Minister, has suspended the Chief Justice from office with effect from 11 September 2018,” Adv Phoofolo told the Lesotho Times , adding, “High Court Judge Justice ‘Maseforo Mahase has been appointed as acting Chief Justice with effect from 11 September 2018.”
The suspension comes after Justice Majara had successfully petitioned the courts to interdict Dr Thabane from both suspending her and setting up the tribunal to investigate her.
Asked if the decision to suspend Justice Majara was not in contempt of court, Adv Phoofolo insisted the government had not acted in contempt and stood ready to defend its decision before the courts of law.
“We are prepared to respond in the courts of law but I am not in a position to disclose how we are going to do it. We have a very strange situation whereby the Chief Justice and all the High Court judges have obtained interdicts restraining the Prime Minister and His Majesty King Letsie III from exercising their powers of discipline in terms of the constitution.
“Another situation is that we have a Court of Appeal that is not operational because of the on-going court battle that has been instituted by three lawyers (Zwelakhe Mda, Karabo Mohau and Qhalehang Letsika). So where are we supposed to go and appeal the High Court decisions when the Court of Appeal is dysfunctional? Unfortunately, this affects every Mosotho who has to appeal the decisions of the High Court,” Adv Phoofolo said.
The decision to suspend Justice Majara comes almost four months after she obtained a court order interdicting the Prime Minister from recommending to King Letsie III her suspension from office as well as the appointment of a tribunal to probe her.
Justice Majara obtained the court order after Dr Thabane wrote to her requesting her to ‘show cause’ why she should not be impeached.
A copy of the ‘show cause’ letter dated 27 April 2018 requested Justice Majara to make representations showing why she should not be removed from office on the basis of eight counts of misconduct including her alleged failure to preside over cases for two years.
She was accused of playing a relatively limited judicial role despite the huge backlog of cases at the High Court.
Another charge pertained to Justice Majara’s controversial deal to rent a house for M27 000 per month from a colleague, Justice Teboho Moiloa. The amount is way above the M4000 statutory allocation for her housing allowance.
“Notwithstanding your obligation as the administrative head of the High Court and in your capacity as the chairperson of the Judicial Service Commission (JSC), you have been indifferent to the allegations of your misconduct over the leasing of your official residential home from your puisne judge,” Dr Thabane said in his April 2018 letter to Justice Majara.
“You have not facilitated an inquiry into the matter hitherto, thereby compromising the integrity of the JSC by failing to recuse yourself from the JSC and allowing for the inquiry over allegations of misconduct on your part and or that of the puisne judge whose house you rented.
“I therefore do hereby, respectively afford Your Ladyship this opportunity to make representations concerning the foregoing state of affairs and why I should not represent to the King that the question of removing the Chief Justice ought to be investigated on the basis of the foregoing allegations as well as the suspension of the Chief Justice pending finalisation of the investigations,” Dr Thabane wrote.
However, Justice Majara launched her fightback in May 2018 with a court application seeking to both interdict Dr Thabane from suspending her and from establishing the tribunal to probe her. It emerged yesterday that her interdict application had succeeded though this had not been widely reported.
Justice Majara had asked the court to order that “the first respondent (Dr Thabane) be prevented and interdicted from recommending to His Majesty the suspension of the applicant”.
The chief justice also asked the court to order that Dr Thabane is “prevented and interdicted from recommending to His Majesty the appointment of the tribunal”.
In terms of the final relief, Justice Majara wanted the court to order that “the government under the supervision of the first respondent (Dr Thabane) has contravened the constitution by requiring and/or demanding the resignation of the applicant as Chief Justice of the Kingdom of Lesotho”.
In her supporting affidavit, Justice Majara said she had been left with no choice but to seek legal relief “after all my efforts to resolve this matter amicably proved futile”.
She suggested that Dr Thabane only penned the ‘show cause’ letter and decided on the legal route of advising His Majesty to suspend her and appoint a tribunal after his “unlawful attempts” to remove her through “coercion” failed.
“In all circumstances the first respondent is using the constitutional procedures and processes to achieve indirectly my removal from office which he had unlawfully started negotiating and when it failed he is abusing the powers set out in the constitution to seek to achieve the same result.
“I verily aver that the use of powers of the constitution (to suspend me) is irrational, unreasonable and unlawful in all the circumstances. It is clearly tainted by bad faith.”
Justice Majara charged that the “unlawful attempts” to remove her from office had included threats from some cabinet ministers, principal secretaries and public demonstrations by some individuals who styled themselves as the ‘Hands off Mosito’ campaigners.
The ‘Hands off Mosito’ campaigners described themselves as a “team of patriotic Basotho men and women who are increasingly irked by the deliberate delayed swearing in of Judge Kananelo Mosito as President of Court of Appeal after his appointment by a government gazette in terms of the constitution”.
They wrote to Dr Thabane in April this year imploring him to immediately dismiss Justice Majara for allegedly plotting with the opposition to topple the government.
Judge Mosito had been re-appointed to head the Court of Appeal by Dr Thabane in August 2017 but he could not assume the coveted seat after his appointment was challenged by a group of lawyers who deemed him unfit for purpose. His earlier appointment to head the same court had been nullified by the previous government of then Prime Minister Pakalitha Mosisili which had accused him of tax evasion.
In her court papers, Justice Majara said her troubles with the government had started in November 2017 when she was approached by the former Minister of Justice, Mahali Phamotse who requested her to resign because the government did not want to work with her.
“During our discussions, I informed her (Dr Phamotse) that the government did not have to like me. All that was required was for me to discharge my constitutional mandate and comply with other laws of the country. My service was not at the pleasure of any politician of whatever political orientation,” Justice Majara stated.
The chief justice said she eventually agreed to negotiate her exit after Dr Phamotse’s threats that she would never win any fight with the government as they would “do everything in their power to make life difficult for me and by the time they are done with me I would be finished and no one would even want to touch me professionally”.
She said she was under “tremendous duress” because the Minister of Water, Samonyane Ntsekele, had allegedly joined Dr Phamotse in pushing her to resign. The duo allegedly threatened that she would not receive her terminal benefits if she waited to be pushed out.
Negotiations for the exit package seemed to have stalled amid revelations that Justice Majara had demanded a whooping M17 million package which the government declined to pay her. Dr Thabane’s show cause letter then followed.
Lesotho’s judiciary has been in paralysis as the government has sought to oust the Chief Justice who has spiritedly resisted the move, garnering her own allies among her fellow judges. The Court of Appeal, the highest court in the land, has been in limbo since Justice Mosito’s ill-fated appointment while at the lower judicial strata, magistrates were recently on a go slow industrial action over poor working conditions. The net effect has been to paralyse the administration of justice in Lesotho.