…Sadc route futile without tribunal
In 2010, after several court judgements against the Zimbabwean government, the Southern African Development Community (Sadc) summit of heads of states and governments held in Namibia decided that a review of the role, functions and terms of reference of one of its key institutions – the Sadc Tribunal should be undertaken and concluded within six months.
The tribunal was de facto suspended.
Then in August 2012, at the Sadc summit held in Mozambique, Sadc leaders resolved that a new tribunal should be negotiated and that its mandate should be confined to interpretation of the Sadc Treaty and Protocols relating to disputes between member states.
From its inception, the Tribunal had the jurisdiction to hear complaints from both individuals and states.
This meant that individuals could approach the Tribunal to access relief when Sadc member states violated their human rights.
Then in 2014, nine states signed the revised Protocol on the tribunal, which would explicitly limit the Tribunal’s jurisdiction, but the instrument has not received the ratifications needed for its entry into force, despite the urging of Sadc.
If the 2014 protocol was to acquire force of law, this would make the deprivation of individual access to the tribunal permanent.
The protocol removed access to the tribunal by individuals and legal persons and removed the tribunal’s human rights mandate.
The then South African president Jacob Zuma’s participations in both the 2010 suspension of the tribunal and 2014 protocol were challenged in South African courts.
In March this year, the High Court of South Africa found that Zuma’s conduct in participating in this illegal exercise was unconstitutional.
On the eve of the Sadc heads of state summit in August 2015, the Coalition for an effective Sadc tribunal called on heads of state to “uphold the rule of law and human rights in the region by reinstating the Sadc tribunal”.
There were 16 coalitions supporting this call out of which only one – Transformation Resource Centre (TRC) – was based in Lesotho.
The 16 organisations, including the Law Society of South Africa, noted in their statement: “The disbandment of the old Tribunal and the adoption of the new Protocol effectively disregards the independence of the judiciary, separation of powers and the rule of law. It also impacts negatively on human rights and business confidence across the region.”
In August this year, the Sadc People Summit convened by the Southern Africa People Solidarity Network (SAPSN) in Windhoek, Namibia called on Sadc leaders to “revive the Sadc Tribunal with its original form and powers as before its disbandment”.
Lesotho’s delegation to the people’s summit, drawn from grassroots social movements, community-based organisations, women’s organisations, labour, students, youths, economic justice, human rights, people with disabilities and other various sectors of social movements, was led by the Lesotho Council of Non-Governmental Organisations (LCN).
This month has seen the Prime Minister Thomas Thabane led-government suspending Chief Justice Nthomeng Majara, with international human rights organisations heavily criticising the suspension saying it undermined the rule of law and judicial independence.
While government hit back at the detractors, Majara herself petitioned the High Court to declare her suspension null and void.
High Court judge, Justice ‘Maseforo Mahase, was appointed the acting Chief Justice.
Upon learning of the Chief Justice’s suspension, her lawyer Qalehang Letsika wrote to the Prime Minister advising him of the “illegality” of the process that resulted in Majara’s suspension.
Letsika also indicated that he would advise Majara, who was out of the country then, to ignore the “illegality”.
The Attorney General (AG) Haae Phoofolo (KC) then moved swiftly to seek an order that, among other things, prohibited Majara from accessing her office at the high court.
The order was granted by the acting Chief Justice Mahase.
It is this episode that propelled three local senior lawyers to write a letter calling on Sadc to “take appropriate action in Lesotho to bring this unsavoury state of affairs to a stop”.
King’s Counsels Karabo Mohau, Motiea Teele and Zwelakhe Mda wrote in their letter: “The starting point should, in this regard, be the immediate disbandment of the tribunal unlawfully appointed contrary to a valid order of court, and the reinstatement of the Chief Justice as her removal was clearly unlawful and unconstitutional.”
The letter added that: “The unconstitutional re-engineering of the upper echelons of the judiciary in Lesotho is clearly aimed at capturing the judiciary so that it delivers decisions that are to the liking of the executive.
“This is all happening under Sadc’s watch, and history will surely judge all those who can and should do something but choose to look the other way.”
It is not clear if Lesotho lawyers ever called on the Sadc leaders to reinstate the tribunal but one is reminded of the famous poem by German Lutheran pastor Martin Niemöller:
First they came for the socialists, and I did not speak out – Because I was not a socialist.
Then they came for the trade unionists, and I did not speak out – Because I was not a trade unionist.
Then they came for the Jews, and I did not speak out – Because I was not a Jew.
Then they came for me – and there was no one left to speak for me.
This latest fracas in the judiciary has its roots in a decision by Justice Majara in August last year when she refused to swear in Justice Kananelo Mosito as president of the Appeal Court, arguing that there was a pending constitutional case challenging his appointment.
Majara reportedly told Thabane in a hastily organised meeting that the majority of High Court judges had voted against the swearing in of Mosito until the finalisation of a case brought by four senior lawyers challenging the legitimacy of the appointment.
The four lawyers: Letsika who is Majara’s attorney, along with Mohau, Teele and Mda – the trio that has written to Sadc – last year contended that Justice Mosito could not hold the office because of a chequered history with the taxman that led to his impeachment.
The quartet argued that due process was not followed when Thabane appointed Mosito.
They further contended that Mosito’s predecessor, Justice Robert Nugent, had been removed illegally as he was not given a hearing.
In February this year, the constitutional court reviewed and set aside as irregular and unconstitutional Thabane’s decision to recommend the appointment of Mosito to the King and the subsequent appointment.
Mosito has since lodged an appeal against the verdict but the constitutional judgement resulted in the indefinite postponement of the sessions of the appeal court which normally sits in April and October, because that court does not have a president.
It seems filibustering Mosito’s ascension to the apex of the appeals court was like a curse to Thabane’s government.
While the crisis in the judiciary has been some time in the making, (probably dating back either to the turf war between former appeal court president Michael Ramodibeli and former chief justice Mahapela Lehohla, or perhaps, to Thabane’s request for the duo to quit the judiciary), one fact is central to the current crisis: there has been a generally tense relationship between the executive and the judiciary after Majara halted Mosito’s swearing-in.
Since then, attacks on the judiciary by the executive have been a periodic feature of rule under Thabane, sometimes subdued, sometimes more clamorous.
In November 2017, Majara was approached by the then Minister of Justice and Correctional Services, Dr Mahali Phamotse, requesting her to resign.
Majara was told that the government no longer required her services and that it had no intention of continuing to work with her.
In December, a group of Basotho called the ‘hands off Mosito team’, submitted a petition to the minister of justice alleging that “Chief Justice is working hand in hand with these four lawyers (Letsika, Teele, Mohau and Mda) together with other judges of the high court to do everything in their power to prevent Prof Mosito from being sworn in”.
The petition read in part: “It is for this reason Honourable Minister; we feel compelled to petition you to urge the Prime Minister to use his constitutional power to order the Chief Justice or whoever is acting in that position in her absence to swear in Justice Mosito as the constitutionally appointed president of the Appeal Court or be impeached if they defy the order.”
When accepting the petition, law minister Lebohang Hlaele also launched a blistering attack on Majara and publicly called on the embattled chief justice to either resign or face an impeachment tribunal for alleged corruption over her controversial M27 000 per month house rental deal.
In March 2018, the office of the Government Secretary (GS) Moahloli Mphaka discharged a memo informing the public that government was in superior talks over Majara’s exit from the judiciary.
“The general public is reminded that the Chief Justice continues to be in peaceable talks with the government pertaining to her exit and the talks are at a fairly complicated stage, quickly to be wrapped up,” the GS memo read.
More was to come.
In April 2018, Majara was given a ‘show cause letter’ by Thabane, where she was asked to justify why she should not be impeached for an alleged misconduct.
She duly responded and thereafter approached the courts to obtain a temporary court order stopping Thabane from advising the King to set a tribunal and to suspend her until the question of the legality of the contemplated action against her was determined by the court.
The order was obtained on May 17, and the duration of that was subsequently extended, according to Teele, Mohau and Mda, until the principal case as to the legality of the contemplated action against Majara had been heard.
On September 11, Thabane moved ahead and advised the King to indefinitely suspend Majara from office and replace her with Mahase.
The King also appointed three judges from Uganda, Tanzania and Zimbabwe to the tribunal to hear the misconduct charges against Majara.
On September 19, Majara petitioned the High Court to order the King to revoke her suspension.
She also wanted the court to set aside the subsequent appointment of Mahase as the Acting Chief Justice.
She argued that her suspension violated a May 2018 order that was granted by high court judge Justice Tšeliso Monaphathi.
A day before Majara filed her court papers, government had released a statement which declared that legally, the decision to suspend her was constitutionally sanctioned and could not therefore be faulted.
The statement further indicated that “no court purported nor could it so purport to interdict the government from carrying out its constitutional function”.
But in their letter, the three senior lawyers said in no uncertain terms that the suspension happened despite the existence of a court order stopping Thabane from advising the King to suspend her.
But government has maintained that the impression sought to be created that Majara’s suspension was against court orders, had no valid factual and legal foundation.
It said the two orders “did not have relevance to the present suspension of the Chief Justice”.
This unambiguous contrast in perspectives by the government and the lawyers demonstrate their different understandings of the rule of law, judicial independence.
The three lawyers are, however, not alone on their stance.
In the wake of Majara’s suspension, the Commonwealth Magistrates’ and Judges’ Association (CMJA) on September 13 expressed “deep concern that the Chief Justice of Lesotho was suspended from office”.
The CMJA said it was particularly concerned as two interim court orders prevented the Prime Minister from proceeding with any suspension pending the finalisation of the constitutional challenges filed by the Majara.
“Any measure on the part of the Executive which is capable of being seen as eroding the independence and impartiality of the judiciary is a matter of serious concern and will erode public confidence in the legal system as a whole,” CMJA said in a statement.
The following day, on September 14, Amnesty International also sought to draw a line in the sand and published a statement noting that the suspension of Majara was “a grave threat to judicial independence in Lesotho”.
Amnesty International warned the authorities to show restraint and respect human rights and the rule of law by immediately lifting Majara’s suspension and reinstating her as Chief Justice.
“We urge the authorities to respect Lesotho’s international, regional and national obligations relating to the independence and security of tenure of judges,” the statement read.
On the same day the Amnesty International published its statement, the youth league of the main opposition Democratic Congress (DC) also accused Prime Minister Thabane of acting in contempt of court by advising the King to suspend Majara.
On September 20, opposition parties in parliament announced that they were pulling out of the multi-sector reforms processes in protest at the government’s decision to suspend the chief justice.
“We all agree that the office of Chief Justice is not the type of office that gets ruffled overnight but to do so in violation of existing court orders is not only a travesty of justice but testimony to a complete breakdown of law and order,” said Mathibeli Mokhothu – leader of opposition in parliament.
Government has reassured the nation and the international community that it remained committed to the values of the rule of law and the constitutional democracy, “contrary to the views expressed in the public statements issuing from the Amnesty International and the CMJA”.
It said: “The government of the Kingdom of Lesotho further reaffirms the position that the notion of judicial independence is inextricably tied to the notion of judicial accountability.
“Therefore, the government of Lesotho, emphasises that the suspension of Chief Justice is neither a punishment nor a verdict of misconduct. It is clearly for the judicial tribunal to investigate the issues surrounding her fitness to hold office and not for the government.”
It also reiterated that: “Pursuing the prescribed corrective action against a single member of any country’s judiciary, however elevated and exalted they might be, can never spell doom for the edifice of the justice system; contrary to what doomsayers would have some amongst others believe.”
In Lesotho, judicial independence – a sine qua non of a democratic society – is expressed in the constitution.
Section 118(2) states that “the courts shall, in the performance of their functions under this Constitution or any other law, be independent and free from interference and subject only to this Constitution and any other law”.
The constitution further states further that government shall accord such assistance “as the courts may require” to enable them to protect “their independence, dignity and effectiveness”, subject to the constitution and any other law.
While the global human rights groups, the three senior lawyers and the opposition parties seem to be worried by Majara’s suspension which they say undermines the rule of law and judicial independence, government has waved its detractors away, saying the suspension was a prescribed corrective action against a single member of the judiciary that can never spell doom for the edifice of the whole justice system.
On the other hand, the Sadc tribunal is not operational and has left Sadc citizens without any regional court to hold states accountable for violations of human rights.
There is no end in sight to its suspension.
Is there room for optimism?