MASERU – Constitutional Court judges have pushed back at Acting Chief Justice (ACJ) Maseforo Mahase and Attorney General Haae Phofoolo after their co-ordinated blistering criticism of high court judges.
ACJ Mahase labelled the High Court Judges as unfit and incompetent to hear a case in which her impeachment is sought.
But the judges have hit back labeling the criticism mere “perceptions” that “should be treated as such”.
The court ruled that judges of the High Court are not only able but are competent to determine All Basotho Conventions (ABC) Secretary General Lebohang Hlaele’s application to compel the Judicial Service Commission (JSC) to impeach justice Mahase.
This was after Mahase in September 2019 accused her colleagues of incompetence, describing them all as unfit to hear the case. Mahase went further to allege some of her fellow High Court judges like Justice Lineo Chaka-Makhooane were unhappy with her appointment as ACJ because she (Judge Chaka) was close to the suspended Chief Justice Nthomeng Majara.
Justice Mahase also accused other judges — Justices Thamsanqa Nomngcongo, Tšeliso Monaphathi, Keketso Moahloli and Molefi Makara – of refusing to take orders from her.
She made the allegations in an application in which she sought recusal of all High Court judges from the case.
Judge Mahase said all her fellow judges were unfit to preside over a case that will determine her future as ACJ and “that for the fact that the country is presently polarised on political lines, the public was always going to be suspicious of any outcome of the case”.
She said there was a likelihood of bias by all judges under her administration, because as ACJ, she is the chairperson of the JSC and has to deal with complaints from members of the public about the judges.
Justice Mahase said whatever decision the JSC makes about the judges could send signals that she would have influenced the Commission as its chairperson.
Attorney General (AG) Haae Phoofolo backed Justice Mahase and said all High Court judges ought to recuse themselves from the case due to the close affinity they are likely to have towards her as their boss.
Phoofolo said no judge of the High Court can sit in judgment where one of his colleague with whom in the nature of things they will have a close relationship is a litigant.
In an affidavit, Phoofolo said: “I aver that they (High Court judges) are incompetent to preside over the matter in which 1st applicant (ACJ) is one of the litigants and the prayers are directed against her.
“I am apprehensive that they will not judge according to the dictates of justice and the sense of duty of an upright mind. I am reasonably apprehensive that they will be biased. They are suspects and should decline to hear this matter where prayers are directed at their interim boss.”
He also proposed the appointment of foreign judges to deal specifically with Hlaele’s application.
Justices: Tseliso Monapathi, Semapo Peete and Keketso Moahloli officially recused themselves from the case on November 14. While they agreed to recuse themselves, they declined to order that foreign judges be appointed to hear the case, insisting local judges are skilled and experienced.
The judges said they are not only able but are competent as the judges of the High Court of Lesotho to determine issues in Hlaele’s application but that in the interest of justice, they choose to recuse themselves.
The judges said their “decision is prompted by our feeling that in this case, justice needs not only to be done but must be seen to be done”.
They added: “It is our firm decision that having regard to all recognised principles on recusal applications, the real or imagined likelihood of bias may be illusive depending upon the particular circumstances of each case. We finally are of the view that this is a case in which we have to recuse ourselves as we hereby do.”
However, the judges argue that Justice Mahase’s allegations about her colleagues are just perceptions but said the contention that they (judges) would be biased should be viewed objectively.
“We should make it clear that the allegations made in the affidavit of the Acting Chief Justice without being judgmental, we take them as a perception that she entertains perception – rightly or wrongly that this court is likely to be biased against her, regard being had to be allegations.”
They continued: “In this recusal application, the Acting Chief Justice has listed grounds for the recusal and has contended that there is in her view a likelihood of bias, this should be viewed objectively and not be discounted as lacking bona fides.”
Justice Peete who wrote the judgment said: “Speaking for myself, His Majesty’s judge, I have 22 years under my black belt, I will not be seen as incompetent. I can never surrender my independence to any one, I fear no one. I can with much ease interpret section 121 (5) of the constitution and I can pen without bias the muster as being locus classicus and I belong to nobody.”
The judges acknowledged misunderstandings between most High Court judges and Justice Mahase but said the perception she has that the judges may be biased against her may be wrong or correct “but it can exist or be entertained in the mind of one judge not in the mind of another”.
They further stated: “It is a matter of conscience of the particular judge and no absolute neutrality or impartiality is possible. It should also be realised that an application can be prompted by fear to lose a case before a judge or judges.”
“Of significance, it should be noted that the Acting Chief Justice is not specifically pleading collegiality as such in her affidavit. She is in fact saying that it is the uncordial relationships she has with some judges (even some on the panel) that have caused her to have some perception that the panel and in fact the whole bench of the High Court will not be impartial in determining the constitutional issue in this main application.”
The judges said they may be close to each other as colleagues but that the closeness does not mean collegiality.
“It is common fact that the Acting Chief Justice sits at the Palace of Justice of the High Court. Smallness and close proximity of all judges of the High Court is also common cause although closeness does not necessarily mean collegiality.
“We are of the view that it was unfair for the Attorney General to allege as he did in his affidavit that we are incompetent to deal with the matter of interpreting section 121 of the constitution of Lesotho, nor does collegiality have the effect of disqualifying us from presiding over the matter.
“Imagined perceptions are difficult to assess but seemingly they do exist in the minds of the applicants who deposed to affidavits.”
In their judgment, the judges warned against recusal on every case saying all judges have taken an oath office.
“We hope that our recusal in this matter shall not open the flood gates for a deluge of recusals in every case. Impartiality can never be an absolute concept in our times, judges are all human regardless of rank. They have all taken a solemn oath of office which binds their conscience and is a bell that should sing at all times.”
Meanwhile, Hlaele recently launched a fresh application to prevent Prime Minister Thomas Thabane from confirming Justice Mahase as Chief Justice.
He has asked the Constitutional Court to review Thabane’s decision and set it aside as irregular citing the pending case where he is challenging Justice Mahase’s fitness to hold office.