MASERU – The Judicial Service Commission (JSC) has refused to investigate Zimbabwean judge, now Acting High Court judge, Charles Hungwe’s fitness to continue holding office as a judge of the High Court of Lesotho.
This follows a complaint by a detained police officer he is prosecuting. Thabo Tšukulu laid a litany of complaints about judge Hungwe in a letter he wrote to the JSC on Tuesday this week requesting it to conduct its own investigation.
He says the judge’s conduct in the criminal trial he is facing is not befitting for any judicial officer. The commission’s investigation, he contends, is necessary so it can recommend a tribunal to scrutinise the matter. But the commission says it does not have jurisdiction on the matter.
“I am directed by the Judicial Service Commission to inform you, which I hereby do, that your letter was carefully considered and the Commission has resolved that it does not have jurisdiction in the matter since it relates to an incident that happened during trial proceedings and which for that matter concerns the contents of the court record,” High Court and Appeal Court Registrar, Advocate ’Mathato Sekoai, said in a response to Tšukulu lawyers.
Tšukulu had complained about numerous incidences which happened during his appearances before Justice Hungwe dating as far as 2020.
He told the JSC that on July 8, 2020 in the course of proceedings, his lawyers sought compliance with the order the judge had made on June 22 but he said it had not made such an order.
The order was to the effect that he (Tšukulu) be furnished with an investigating diary kept by police in respect of the matter he is charged with.
The development shocked him “because I know for a fact that my lawyer made that application and the court issued an order that the investigation diary be availed to me.”
The second incident, he alleges, happened on August 10, 2020, wherein his lawyer, Advoacte Kabelo Letuka, raised an issue about the investigation diary but the judge insisted that he did not make the order.
Instead, Judge Hungwe is said to have read the minutes of his record which he said suggested that he (the judge) only said if the diary existed the police should give it to the Director of Public Prosecutions (DPP) who, in turn, would give it to the complainant if they so wish.
According to Tšukulu “this was completely incorrect as the attached transcript of what transpired before Mr Justice Hungwe AJ on 22 June 2020 shows.” He called on the JSC to the record of proceedings on the day so as to establish what happened.
When the incidences happened in 2020, Tšukulu says he sought legal advice and agreed with them to petition the High Court (sitting as the Constitutional Court) to direct that Judge Hungwe’s fitness to hold office be investigated.
“The understanding was that the court would have the power to call for the relevant records and consider whether those made out a prima facie case for instituting the inquiry,”
The Constitutional Court ordered production of the records but it all changed when the Court of Appeal ruled that the lower court lacked jurisdiction, thereby cancelling the orders it made.
This, he said, left him with no remedy hence the decision to request JSC intervention. “In the result, I remain without a remedy to my complaint that Mr. Justice Hungwe AJ exhibited a conduct that is not befitting of a holder of any judicial officer, let alone a high judicial office.
“No judicial officer should distort a record of proceedings more so when, in the event of a dispute about what transpired before him; and for some reason, the electronic record is not available…” Tšukuli stated.
He added: “I submit that the dialogue created by Mr Justice Hungwe AJ goes beyond a mere misunderstanding or misrepresentation of what transpired before the learned judge. He created a dialogue that never took place before him.”
Tšukulu had also asked the High Court to temporarily stay his trial before Justice Hungwe while the JSC investigates his complaint but Sekoai’s response put his case to rest.