Law So­ci­ety breaks si­lence

. . . speaks out on Ad­vo­cate Mos­ito and Jus­tice Ramod­ibedi

Lesotho Times - - Big Interview -

Court of Ap­peal Pres­i­dent, Jus­tice Kananelo Mos­ito, last month in­def­i­nitely post­poned this year’s first Court of Ap­peal ses­sion af­ter the Ju­di­cial Ser­vice Com­mis­sion (JSC) had dis­agreed with his choice of judges.

the ses­sion had been set for 20 April to 5 May, with 38 cases sched­uled for hear­ing dur­ing this pe­riod. the devel­op­ment has since soured re­la­tions be­tween Ad­vo­cate Mos­ito, the JSC and a group of five se­nior lawyers chal­leng­ing Dr Mos­ito’s ap­point­ment as head of the apex court by then Prime Min­is­ter, Thomas Tha­bane, in Jan­uary this year.

Mean­while, the fall­out comes at a time a Le­sotho na­tional, Jus­tice Mathealira Michael ramod­ibedi, is re­fus­ing to sur­ren­der to Swazi law-en­force­ment au­thor­i­ties af­ter a war­rant for his ar­rest was is­sued. Jus­tice ramod­ibedi, who has been Swazi­land’s Chief Jus­tice since 2010, faces charges re­lat­ing to de­feat­ing the ends of jus­tice and abuse of power.

He has locked him­self and his fam­ily in his home since 17 March 2015, and con­tin­ues to ig­nore pleas from Swazi­land and Le­sotho au­thor­i­ties for him to sur­ren­der.

Le­sotho Times ( LT) re­porter Lekhetho Nt­sukun­yane speaks with Law So­ci­ety of Le­sotho sec­re­tary, Ad­vo­cate Nonny Da Silva-manyokole, about th­ese de­vel­op­ments which have put the coun­try’s ju­di­ciary un­der the spot­light.

LT: Re­cent de­vel­op­ments con­cern­ing the in­def­i­nite sus­pen­sion of the Court of Ap­peal and Jus­tice Mathealira Michael Ramod­ibedi’s re­fusal to come out of his home to face the law, have put Le­sotho in an un­en­vi­able po­si­tion. What is the Law So­ci­ety’s po­si­tion on th­ese de­vel­op­ments?

Da Silva-manyokole: the is­sue of the clo­sure of the Court of Ap­peal has posed a prob­lem to the Law So­ci­ety and the legal fra­ter­nity at large. The So­ci­ety is the over­seer or watch­dog of the ju­di­cial sys­tem or the ad­min­is­tra­tion of jus­tice in our coun­try, and this is en­shrined in the Legal Prac­ti­tion­ers Act. What this means is we rep­re­sent both the lawyers and the na­tion, and we have this is­sue where the Ju­di­cial Ser­vice Com­mis­sion (JSC) has re­fused to en­dorse judges nom­i­nated by the pres­i­dent of the Court of Ap­peal for rea­sons given in the let­ter ad­dressed to the pres­i­dent. How­ever, the Law So­ci­ety found it wise, and also in line with the prin­ci­ple of hear­ing both sides, to write a let­ter to the JSC about it. The JSC, in re­turn, reaf­firmed their for­mer stand on why they re­fused to ap­point the judges. So our con­cern is not re­ally about the pol­i­tics of the whole mat­ter. our con­cern is hav­ing the Court of Ap­peal closed is go­ing to im­pact on the rights of all the lit­i­gants whose cases were sup­posed to be heard dur­ing the suspended ses­sion. So ba­si­cally what that means is there is no ad­min­is­tra­tion of jus­tice, and we nor­mally say jus­tice de­layed is jus­tice de­nied. What we are ad­vo­cat­ing for as the Law So­ci­ety is to ex­ert pres­sure on the JSC to fa­cil­i­tate the ap­point­ment of judges for the court. But what we also re­alised was that they were in­sis­tent on the three-per­son rule; and it is not a law. We have as­cer­tained that it was not a law but it was just a rule or a prac­tice. And ba­si­cally where we are now is a state of cri­sis, where we need the court to op­er­ate. right now we re­alise there is a tug of war. Peo­ple are ex­er­cis­ing pow­ers. Who­ever has power is us­ing it to fight. And we want every­body to rise above that and re­spect their of­fices so that jus­tice is ad­min­is­tered.

LT: If you could ex­plain the three-per­son rule...

Da Silva-manyokole: the three-per­son rule ba­si­cally means that when­ever there is a va­cancy in the Court of Ap­peal or when a judge is be­ing sought, where there is one post, you have to sub­mit three names or nom­i­nees so that the JSC is at lib­erty to pick the one that they feel is more suit­able for the po­si­tion.

LT: Who has the power to make th­ese nom­i­na­tions?

Da Silva-manyokole: the per­son with the power to nom­i­nate is ab­so­lutely the pres­i­dent of the Court of Ap­peal. So he will sub­mit the names to the JSC, in­clud­ing their qual­i­fi­ca­tions and CVS, and the JSC will sit and pick the per­son that they will find most suit­able for the job.

LT: In the case in point, did the pres­i­dent fol­low this pro­ce­dure? Da Silva-manyokole: Ab­so­lutely not. Ba­si­cally, the Court of Ap­peal ses­sion was first post­poned for a week. So since the pres­i­dent was ap­pointed in Jan­uary, and the court had to sit in April, and the fact that some judges of the Court of Ap­peal re­signed in the fash­ion they did, it ex­erted pres­sure on him to act with speed. Even in his let­ter which is known to every­body now, he sought funds from the (court) reg­is­trar and was in­formed there were no funds to as­sist him head-hunt suit­able judges. Ba­si­cally, it just tells us that it was dif­fi­cult for him to go about hunt­ing, prob­a­bly now for ar­gu­ment’s sake, let’s say 12 judges, be­cause even for the four judges he wanted ap­pointed, he was meet­ing cer­tain dif­fi­cul­ties. So even if the three-name rule is nec­es­sary, but due to the ur­gency of the mat­ter, the JSC should have at least tried to fa­cil­i­tate by say­ing we un­der­stand there is a rule of this na­ture but we can just ap­point two judges plus EX-OF­FI­CIO judges of the High Court to en­able the court to sit. then at least in the next Oc­to­ber ses­sion, they can try to sort out the re­main­ing judges.

LT: As the Law So­ci­ety, did you make this sug­ges­tion in the let­ter you wrote to the JSC?

Da Silva-manyokole: Ab­so­lutely not. We didn’t. Ba­si­cally we just wanted to know the rea­sons why they did not ap­prove the nom­i­na­tions. But for­tu­nately or un­for­tu­nately, we re­alised that they gave the same rea­sons that they gave to the pres­i­dent. We will elab­o­rate fur­ther on the is­sue be­cause we in­tend to hold a press con­fer­ence soon where we will re­veal in great de­tail, what was con­tained in that let­ter. But it was more or less sim­i­lar to the one the pres­i­dent had.

LT: So what is go­ing to hap­pen con­cern­ing the 38 cases which were sup­posed to be heard in the ses­sion?

Da Silva-manyokole: there is a cloud of un­cer­tainty about this be­cause what the pres­i­dent of the Court of Ap­peal said was that the ses­sion has been post­poned sine die, un­til fur­ther no­tice. So fur­ther no­tice could be next year, two years’ time or even five years. We are not sure. But right now, we would want to deal with this ses­sion so that at least if we ex­ert enough pres­sure for the JSC to un­der­stand where we stand with re­gards the ad­min­is­tra­tion of jus­tice. Hope­fully, they can ap­point those judges and the Court of Ap­peal sits even in June so that there won’t be a back­log of cases.

LT: As the Law So­ci­ety, how far can you go in as far as mak­ing the JSC accountable?

Da Silva-manyokole: the un­for­tu­nate thing is it seems the JSC is act­ing au­tonomously. It rules it­self. It is as if there is no check on it be­cause even in the let­ter they have writ­ten, they clearly showed us that we do not have power over them, hence the fact that we are not even part of the JSC or even ob­servers. But by be­ing given power un­der the Legal Prac­ti­tion­ers Act to fight for jus­tice, it means we can go to any ex­tent, ei­ther legally or oth­er­wise, to ex­ert pres­sure on the JSC to act in or­der to pro­tect jus­tice. So ba­si­cally, the law gives us the power to go to court, the me­dia or wher­ever for our voice to be heard so that at least we would have done some­thing to pro­tect jus­tice.

LT: Let’s talk about Jus­tice Ramod­ibedi. A war­rant has been is­sued for his ar­rest in Swazi­land but he is re­fus­ing to hand him­self over to the po­lice and face the charges he is be­ing ac­cused of. What is the Law So­ci­ety’s po­si­tion on this mat­ter?

Da Silva-manyokole: With re­gards to the is­sue of Ntate Ramod­ibedi, it would be dif­fi­cult for the Law So­ci­ety to act be­cause what we are now talk­ing about is some­body who was not de­ployed by Le­sotho to an­other coun­try. He went to Swazi­land on his own. And hav­ing been charged with cer­tain crim­i­nal ac­tiv­i­ties in that par­tic­u­lar coun­try and re­sist­ing ar­rest, all we can do is watch for now.

We are just try­ing to fig­ure out why he is re­fus­ing ar­rest and what Swazi­land will do about that. He is a law-en­force­ment per­son; he knows what he is do­ing. the fact that he does not want to be ar­rested, he doesn’t want to stand trial for his side of the story to be heard. Re­ally, I am not even sure what he wants our coun­try to do for him. But ba­si­cally as the Law So­ci­ety, nor­mally we would have spo­ken if he had said he was be­ing tor­tured or I am be­ing de­nied a fair trial. Right now, as it stands, even in in­ter­na­tional law, states are sovereign. Le­sotho can­not in­ter­fere with how Swazi­land deals with its own jus­tice sys­tem. But when there is un­fair­ness and he was not be­ing af­forded a fair hear­ing, or he was just thrown into jail with­out see­ing a day in court, then we can talk as pro­tec­tors of in­ter­na­tional law or in­ter­na­tional treaties that we have signed with other coun­tries. But as it stands right now, we are tightlipped. We can­not re­ally say it is wrong for Swazi­land to in­dict the man or whether it is wrong for him to re­main in his house.

LT: Since Jus­tice Ramod­ibedi’s stand­off started in 17 March 2015, did you, as the Law So­ci­ety of Le­sotho, ever talk about this mat­ter with your coun­ter­parts in Swazi­land?

Da Silva-manyokole: No. We haven’t had any for­mal con­ver­sa­tion with them with re­gards to Jus­tice Ramod­ibedi’s is­sue.

LT: At a re­cent press con­fer­ence, All Ba­sotho Con­ven­tion Mem­bers of Par­lia­ment called for the Law So­ci­ety to pro­nounce it­self on the Court of Ap­peal and Jus­tice Ramod­ibedi. To some ex­tent, you were also ac­cused of sid­ing with cer­tain po­lit­i­cal par­ties in gov­ern­ment, hence the si­lence. What is your po­si­tion on this very se­ri­ous in­sin­u­a­tion?

Da Silva-manyokole: I should set the record straight with re­gard to our of­fice. Our of­fice is not po­lit­i­cally af­fil­i­ated, whether to the pre­vi­ous gov­ern­ment or the present one. If we feel some­thing is right or is in­fring­ing on the rule of law or the ad­min­is­tra­tion of jus­tice, we will take a stance. So their per­cep­tion that our si­lence was due to the fact that we are af­fil­i­ated to the present gov­ern­ment is wrong. on the is­sue of Jus­tice ramod­ibedi, Swazi­land should ad­min­is­ter its jus­tice the way it feels is right. The MPS are just in a hurry for us to say some­thing. We are ba­si­cally watch­ing and try­ing to de­ter­mine what is re­ally go­ing on. Right now, we don’t know the man’s side of the story. We are wait­ing to hear what he has to say and then we can pro­nounce our­selves on the is­sue. About the Court of Ap­peal, we are con­stantly in con­ver­sa­tion with the JSC. We will ap­ply pres­sure on that one so that at the end of the day we see jus­tice be­ing done.

LT: There is also an is­sue of the five lawyers who are chal­leng­ing the ap­point­ment of Jus­tice Mos­ito as pres­i­dent of the Court of Ap­peal. What do you, as the So­ci­ety, say about this?

Da Silva-manyokole: Be­fore Ntate Mos­ito was in­au­gu­rated, we had a meet­ing as the Law So­ci­ety, as we tried to find out whether it was just or it was the right time for that ap­point­ment, tak­ing into ac­count the tur­bu­lence that was tak­ing place at the time. But since we are lawyers and we are also driven by the law, ev­ery­thing we do should be sup­ported by the law. We found that even though we can ex­ert pres­sure on who­ever, the law does not give us power to tell the prime min­is­ter and the King to stop what­ever is be­ing done. We could not stop the ap­point­ment or the nom­i­na­tion, as long as it was within the lim­its of the law. then our hands were tied. right now, we are deal­ing with who­ever is the pres­i­dent. We are go­ing to sup­port him if he was rightly nom­i­nated. The man is not a crim­i­nal. the man is ed­u­cated. He has ob­tained his doc­toral de­gree and there was noth­ing that we could say was go­ing to jeop­ar­dize the ju­di­cial sys­tem. And with re­gards to the five lawyers, I have re­alised that they have dis­as­so­ci­ated them­selves from the Law So­ci­ety. As a mat­ter of fact, I al­ways find that they are be­lit­tling the pow­ers of the Law So­ci­ety be­cause when­ever the Law So­ci­ety has to take a stance they are the first to say this is what we, the five lawyers, are say­ing. The fact that they are se­nior lawyers and so forth prob­a­bly is the thing that makes them feel that they are su­pe­rior. I have not even seen them in our meet­ings. What should hap­pen is they should re­ceive a man­date from the Law So­ci­ety Coun­cil if they want to say some­thing on our be­half. But it now looks like we have two Law So­ci­eties. So what­ever they are do­ing now or in the fu­ture, we are dis­as­so­ci­at­ing our­selves from them.

Law So­ci­ety of Le­sotho sec­re­tary ad­vo­cate Nonny Da Silva-manyokole.

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