Advocate Makhethe also takes Prime Minister Thabane to court over Mosito’s appointment as Appeal Court president
In an unprecedented move, Attorney General Tšokolo Makhethe is suing King Letsie III for the appointment of King’s Counsel (KC) Kananelo Mosito as President of the Court of Appeal.
In papers filed before the Constitutional Court on Friday, KC Makhethe is suing the King alongside Prime Minister Thomas Thabane, Minister of Law, Constitutional Affairs and Human Rights Haae Phoofolo, Justice and Correctional Services Minister Motlohi Maliehe and Justice Mosito, who are cited as First to Fifth respondent, respectively.
Advocate Mosito took oath of office on Tuesday, succeeding Justice (Michael) Ramodibedi who resigned in a huff in April last year.
Advocate Makhethe is seeking an order declaring: “That the appointment of Fifth Respondent (Justice Mosito) as President of the Court of Appeal is null and void;
“That the decision of His Majesty the King appointing Fifth Respondent as President of the Court of Appeal should be reviewed and set aside as irregular and invalid;
“That the Second Respondent (Dr Thabane) was not entitled to make a recommendation for the appointment of the Fifth Respondent without the approval of Cabinet in terms of section 88(2) of the Constitution and consequently that His Majesty the King was not entitled to make such an appointment in terms of section 124 of the Constitution.”
In his lengthy affidavit, Advocate Makhethe says he has the legal standing to lodge a case where he believes the integrity of the administration of justice and judicial officers is being compromised.
He states: “In my capacity as the Attorney General (AG), I have a legal duty to protect their integrity and ensure that I assist judicial officers in the discharge of their obligations.
“I aver that this legal duty obliges me to take such measures in circumstances where the government itself violates provisions of the Constitution and other laws.”
Describing the nature of his case, the AG notes: “This is an application in terms of which the powers of the Second Respondent to make recommendations without reference to the Cabinet are questioned.
“In particular, the power of His Majesty to appoint a candidate in circumstances where such appointment is made without reference to the Cabinet is being impugned.”
He further says the Constitutional Court has jurisdiction to hear the case “because the matter raises important and serious issues, namely whether the decision of the King is constitutionally wanting in that the process for the appointment and consequently the appointment itself is invalid.
“At the heart of this application is that the Second Respondent (Dr Thabane) failed to apply his mind to relevant facts with the result that his recommendation to His Majesty for the appointment of the Fifth Respondent (Justice Mosito) as the President of the Court of Appeal was made arbitrarily or mala fide.
“It is the case of the applicant that the Second Respondent misconceived the nature of his powers in relation to a recommendation to be made to His Majesty conferred upon him in terms of section 124 of the Constitution; and also relied on irrelevant considerations and ignored relevant ones.”
Advocate Makhethe also brought to the attention of the court a statement made by five top lawyers in December last year in which they challenged the then intended appointment of Justice Mosito.
The AG was referring to a statement issued by KC Salemane Phafane, Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika.
“Their objection to the appointment of the Fifth Respondent stems from the fact that it is well-known that the Fifth Respondent advises and represents the Second Respondent in matters of government to the exclusion of the Attorney General.
“One example, amongst many, the Fifth Respondent gave legal opinion and advice to the Second Respondent, at the request of the latter, with the former readily willing to render same, albeit without having been mandated by the Attorney General to do so, or even just alerting the Attorney General that he had been approached by the Attorney General’s client to tender such legal opinion and advice.
“The opinion was about the retirement age of the applicant and the Director of Public Prosecutions (DPP).
“On the basis of the Fifth Respondent’s aforementioned legal opinion and advice, rendered in the peculiar circumstances aforementioned, the Second Respondent attempted to remove from office the applicant and the DPP on the pretext that they had reached retirement age.
“I discovered that the true reason for the removal was that the incumbents of these positions were considered ‘politically incorrect’,” he stated.
Advocate Makhethe further charged that Justice Mosito’s appointment was “in pursuance of his (Thabane) well-known strategy to capture key institutions of the state by ensuring that their top positions are held by his political party members.
“One of the hallmarks of this appointment is that it comes immediately after the dissolution of parliament (on 5 December 2014).
“This factor is important in that the current government, by its nature, is transitional or what may conveniently be called a caretaker government which would ordinarily not be entitled to make key appointments until the country comes from elections, which are due to be held on 28 February 2015”.
He further declares Deputy Prime Minister Mothetjoa Metsing informed him it had always been part of the prime minister’s political agenda to ensure key positions of the state were only held by his party members.
“And this approach, as the Deputy Prime Minister himself avers, was always one of the sources of grave differences of opinion between the two of them, but the Second Respondent would not be deterred,” he stated.
Advocate Makhethe also highlights the reason why he considers Justice Mosito’s appointment as Appeal Court President unconstitutional.
“In terms of section 88 (2) of the Constitution, it is the function of Cabinet to advise His Majesty and Cabinet is collectively responsible to the two Houses of Parliament for any advice given to His Majesty by or under the general authority of Cabinet for all things done by or under the authority of any minister in the execution of his office.
“The appointment of the Fifth Respondent was never referred to Cabinet and is therefore in violation of the principle set out in section 88 (2).
“If the appointment of the Fifth Respondent by His Majesty was done without the knowledge of Cabinet and in particular without the knowledge and consent of the Deputy Prime Minister as a coalition partner in the current government, it is unconstitutional and illegal,” he said.
He added: “The appointment of the President of the Court of Appeal is done in pursuance of section 124 (1) of the Constitution, by His Majesty acting on the advice of the Prime Minister.
“The same powers are conferred by section 4 (1) of the Court of Appeal Act of 1978.
“Neither the Constitution nor any legislation of Lesotho gives the Second Respondent the authority to recommend the appointment of the President of the Court of Appeal acting unilaterally and without the involvement of Cabinet.
“I aver that there has never been discussion in Cabinet, even in general terms, that the present government recommends the appointment of the President of the Court of Appeal to replace Justice (Michael) Ramodibedi who had since resigned.
“The issue of the recommendation for the appointment of the Fifth Respondent as the President of the Court of Appeal has never even remotely been hinted by the Prime Minister.
“I specifically know this because I sit in Cabinet.
“In the same manner, the supporting affidavit of the Deputy Prime Minister will confirm this fact.”
In his brief supporting affidavit, Mr Metsing stated: “I confirm that I have read and understood the contents of the affidavit of the Attorney General, and I wish to confirm and align myself with its contents in so far as they relate to me.”
The respondents are supposed to notify Advocate Makhethe by 12 February 2015 if they intend to oppose the application.