MASERU – Attorney General (AG) Haae Phoofolo has rubbished claims that government was actively involved in the appointment of foreign judges to preside over high-profile cases involving members of the security agencies.
Phofoolo was refuting former Defence Minister Ts`eliso Mokhosi’s claims in the Constitutional Court last week that government cherrypicked foreign judges to ensure they were convicted and sentenced to death.
Instead, Phoofolo argued the recruitment and appointment of the judges was left to the relevant authorities with government only providing the necessary logistics.
In an answering affidavit to an application by Mokhosi together with 15 army and police officers bidding to nullify the appointment of foreign judges, Phoofolo said government merely discharged its Constitutional obligation to ensure the effectiveness of the judiciary by requesting international assistance.
After that, he added, neither government nor Prime Minister Motsoahae Thabane played a further role in the recruitment of the judges besides triggering the process leading to prosecution of suspects implicated in the Phumaphi Commission report.
“The Prime Minister had played no role in the recruitment of the judges but as the responsible Prime Minister who has obligations to implement the Phumaphi Commission recommendations, he was under the obligation to trigger a process that would lead to prosecution of suspects implicated therein.
“The recruitment and appointment were done by the relevant authority and not the Prime Minister or under his control and supervision,” he added.
Phoofolo insisted the recruitment of the judges was left solely to the Judicial Service Commission (JSC) and that the appointment of Zimbabwean Justice Charles Hungwe was confirmed by His Majesty the King in terms of the Constitution without any interference from the Executive.
A multilateral agreement involving government, SADC, the Judicial Service Commission (JSC), the Director of Public Prosecutions (DDP) and European Union on the engagement of foreign judges attached to Phoofolo’s affidavit confirms the EU’s active involvement and pledge to fund the judges’ employment for 18 months.
The JSC, according to the agreement, was tasked with providing personnel and terms of reference for the judges.
“The role of the executive was to trigger the recruitment process as it involves many factors such as securing the funding and engaging diplomatic negotiations with SADC and its member state.
“The recruitment process was left with and undertaken solely by the JSC through its usual and ordinary protocols, and the appointment of 1st Respondent was then done by His Majesty the King in terms of the constitution without any interference from the executive,” read part of Phoofolo’s affidavit.
Mokhosi and his co-applicants have averred that the appointment of Justice Hungwe, now Acting High Court judge, was “tainted” by the involvement of government.
Mokhoisi argued that they would not receive a fair trial – if Hungwe presided over their cases as government and its chief officers who purportedly appointed him – were interested parties in their cases.
“The involvement of the executive in the recruitment of the first respondent and any foreign judge to serve as acting judges of the High Court of Lesotho undermines the independence of the judiciary enshrined under section 118 of the Constitution buttressed by the provisions of the Administration of the Judiciary Act of 2011.
“We reasonably fear that the particular judges have been handpicked so that they could convict us and impose stiff penalties including death penalty given that it is still applicable in Lesotho,” Makhosi said in the affidavit deposed on behalf of all applicants.
But the AG said foreign judges were engaged pursuant to political disturbances and security challenges as well as the recommendation by the Phumaphi Commission of Enquiry that members of the Lesotho Defence Force (LDF) implicated in human rights atrocities “be prosecuted using best international standards”.
He explained that government being part of and answerable to SADC, was bound to implement the recommendations of the Phumaphi Commission, which are now SADC’s comprehensive decision on Lesotho and that government was bound to investigate and prosecute all criminal matters, particularly the LDF.
The AG said while the cases were supposed to be dealt with by local judges, it was faced with challenges namely; “that the high court of Lesotho is understaffed with just about 12 judges who are burdened not only to adjudicated over about more than 4000 criminal cases which are already pending, as well as cases that are being newly registered and that there were widespread perception that local judges would not be independent or impartial in dealing with the people implicated by the Phumaphi Commission findings”.
Consequently, the government then approached Sadc to second judges from jurisdictions that are similar to Lesotho to assist in adjudicating the cases.
“Before submitting this request the Prime Minister, in a meeting in which I was present, detailed Cabinet ministers Mahali Phamotse and Lesego Makgothi to consult the Chief Justice Nthomeng Majara concerning the recruitment of the foreign judges.
“The input of all stakeholders such as the JSC, ministry of justice and correctional service, LDF, and others was solicited.
“Chief justice Majara ultimately endorsed the recruitment of foreign judges, and I relayed the report to the prime minister. This endorsement, as Chief Justice Majara had said, was subject to the JSC approving the individual foreign Judges, ”Phoofolo stated.
Phoofolo further stated that the proposal by Lesotho that foreign judges be recruited was accepted by Sadc, as the proposal was intended to ensure independent, impartial and highly experienced foreign judges who would objectively try those cases were provided.
The judges would help clear the backlog of criminal cases in the High Court; to assist Lesotho to implement outstanding obligations arising out of Phumaphi Commission and that Sadc agreed that the judges would be sourced from Sadc member states whose legal systems are compatible with Lesotho’s.
After that, the JSC tasked the Assistant Registrar of the High court, Realeboha Makamane, to identify experienced and quality personal to recruit.
“Mr Makamane will attach his supporting affidavit to explain how the recruitment process was undertaken by him. What I know as a matter of fact is that after the recruitment process by Mr Makamane, the Registrar, and the JSC received several Curriculum Vitae (CVs) from the interested candidates from several Sadc member states.
“The JSC sat to consider the candidates, and it is at that meeting whereby the applications of two candidates were rejected by the JSC on account of reasons that I may not disclose. I was personally present in this meeting as the Attorney General.”
Three of candidates were recommended by the JSC for appointment to His Majesty the king in terms of the constitution and Justice Hungwe was subsequently appointed by His Majesty the king.
For his part, Deputy Registrar Realeboha Makamane, in a supporting affidavit, said he was tasked by the JSC to assist head-hunt highly competent and qualified candidates who could be recommended for appointment as judges to hear high profile cases.
“I wish to inform this Honourable Court that I was not part of the screening process of the candidates but immediately after the completion of the process, I was instructed to communicate messages of success and regrets to the candidates.
“To my recollection, two of the candidates were rejected while three were considered for recommendation that was first respondent (Hungwe) whose recommendation was accepted and was duly appointed judge of this honourable court.”
Phoofolo said all claims made by Mokhosi are baseless as the appointment of the judges was done by the JSC.
“There is no basis upon which the deponent (Mokhosi) should allege that foreign judges were identified by the executive, such has been the role of the Judicial Service Commission through the registrar who embarked on the identification and recruitment of foreign judges, the executive’s role was limited to proposing international assistance with the endorsement of the Chief Justice, which proposal was approved by SADC. Thus there is no violation of section 120 (2) and (5) of the constitution.”
Phoofolo suggested that Mokhosi and his co-applicants are not wishing to have their criminal trials proceed to finality within a reasonable time but resorted to wasting the court’s time by instituting the present application.
He said they could raise their complaints in the actual trials or by resorting to other remedies available under the law.
“The deponent has failed to indicate as a matter of evidence how the Prime Minister and DPP played any role in the recruitment/appointment of judges and any fear of judges being handpicked to convict and impose stiff penalties is misplaced, unfounded and irresponsible.”
“Otherwise the averments about me are unjustified attack on my person as the Attorney General, my being as a minister in 2012 is irrelevant and does not detract from the fact that the decision to recommend the appointment of judges is that of the Judicial Service Commission and not of myself, even though I may be a member in my capacity as the AG. It is unfortunate and mischievous that the deponent is mixing my current position as AG with politics,” Phoofolo replied.
“It is wrong and a pathetic display on the deponent’s part to associate my brief to argue against Lt Gen Kamoli’s bail application with my past political activity and there to cast as my motive to a view that I wanted him to face long-term imprisonment and possibly death sentence.
“Apart from the obvious fact that I was only doing my professional work, I have nothing in this world that I could compete with the deponent about; he has his own life and profession, which are different from my own,” he added.
He said Mokhosi had failed dismally, except to make bold unsubstantiated statements, to show how government had played an instrumental role in the appointment of foreign judges.
“I must indicate that the registrar as the secretary of the JSC informed the JSC that the South African judges who were consulted all declined to be involved in the criminal cases aforesaid, this is so notwithstanding the alleged arrangement between the Chief Justice and South Africa. That the executive pre-determined that this case be dealt with by foreign judges has no basis in evidence.
“The JSC’s recommendation of the three judges was for them to be appointed as judges in order to reduce the backlog of cases as well as to deal with criminal cases indicated therein.
“The recruitment and appointment of the judges in the circumstances did not violate section 132 (8) of the constitution as alleged as the JSC has never been subjected to any control or discretion,” Phoofolo said.
He asked the court to dismiss the application saying it is an abuse of process and is intended to frustrate the criminal trials faced by the applicants.
Phoofolo also said the court should decline jurisdiction in that there are other alternative means available such as the recusal of a judge and that those applying do not have a legal right to do so.
He further states that there is no case for the relief sought in that “the applicants are complaining about an appointment but have failed to establish how and when the said appointment has infringed their constitutional right.”