Ntsebeng Motsoeli
EUROPEAN Union (EU) Ambassador to Lesotho, Christian Manahl, says Court of Appeal President Justice Kananelo Mosito “cannot simply be fired” without following due constitutional procedure.
Commenting on the latest moves by Prime Minister Thomas Thabane to oust Justice Mosito on the grounds of alleged misconduct, Dr Manahl said, constitutional procedures should be followed before he could be relieved of his duties.
He said this in a recent wide-ranging interview with the Sunday Express, where he also expressed his “dismay” over “recurrent reports of police brutality, in particular cases of torture and of the death of detainees in police custody”.
He implored the government to investigate and take disciplinary measures against rogue police officers implicated in the torture of civilians and other forms of human rights abuses.
His remarks come against the background of renewed efforts by Dr Thabane to suspend and impeach Justice Mosito, this time on the grounds that the latter’s employment at the National University of Lesotho (NUL) “might compromise your independence, impartiality and competency as a judicial officer”.
In a letter to Justice Mosito dated 14 August 2019, Dr Thabane states that the top judge’s continued employment at the NUL despite his order for him to resign from the university is an act of misconduct that compromises Justice Mosito’s independence, integrity and competency as a judge.
“I therefore intend to advise His Majesty the King (Letsie III) to appoint a tribunal in terms of section 125 (5) of the constitution to investigate the aforesaid misconduct and your fitness to hold office. In order to preserve the integrity of the office of the president of the court of appeal and the administration of justice as a whole, kindly be advised that I further intend to advise His Majesty the King to suspend you from office in terms of section 125 (7) of the constitution.
“I now therefore invite you to make representations, showing cause, if any, why I cannot proceed as indicated above. Your written representations, if any, should reach my office within a period of seven days after receipt hereof,” Dr Thabane further states.
Dr Thabane has already failed in two previous bids to oust Justice Mosito on the grounds that he had interfered with the administrative functions of Acting Chief Justice ‘Maseforo Mahase.
The latest bid to kick out Justice Mosito is premised on the first bid which Dr Thabane launched on 12 June this year when he wrote to Justice Mosito giving him a seven day ultimatum to choose between his post at the apex court and his post as lecturer in the Law Faculty at the NUL. In his latest “show cause” letter to Justice Mosito, Dr Thabane states that he is not satisfied with the latter’s reply to his 12 June 2019 letter on the subject of his continued employment at NUL.
Dr Thabane dismisses Justice Mosito’s arguments that his position as a professor at the NUL does not interfere with his duties as a judge. The premier is not satisfied with Justice Mosito’s argument that there is nothing unconstitutional about holding office as a judge and a lecturer and that judges hold the two positions simultaneously in other countries. The premier also rejects Justice Mosito’s argument that in any event, sitting on the Court of Appeal bench is not a salaried job and apex court judges are merely paid allowances based on the number of cases they hear.
Dr Thabane said he was dismayed and embarrassed to learn that Justice Mosito did not consider himself to be in the service of the King’s government despite that the latter was an employee of the NUL where the King is the Chancellor and he was a judge in His Majesty’s judiciary.
He said that he had no doubt in his mind that Justice Mosito’s remarks were a sign of disrespect to both the King and the constitution and that when such remarks coming from a judge calls for into question of the latter’s fitness to hold office.
Dr Thabane said Justice Mosito’s continued employment relationship with NUL whilst the latter remained president of the Court of Appeal constituted an act of misconduct that compromised the judge’s independence, integrity and competency as a judge.
As a result, Dr Thabane said he would advise His Majesty to suspend and impeach Justice Mosito. The case is currently before the courts after the Law Society of Lesotho challenged Dr Thabane’s moves to impeach Justice Mosito.
Dr Thabane’s previous moves to oust Justice Mosito were condemned by local and international experts including the Law Society and the International Commission of Jurists who described the moves as a calculated assault on the independence of the judiciary by the executive. And now, the EU has proffered advice to the government on its latest attempts, saying the constitution must followed if any action is to be taken against Justice Mosito.
“The President of the Court of Appeal (Justice Mosito) cannot simply be fired. The Constitution of the Kingdom of Lesotho prescribes a procedure under which a judge of the Court of Appeal, including its President, may be relieved of his functions,” Dr Manahl said.
He also spoke on the need for reforms to ensure the independence of the judiciary as well as to ensure that only the most qualified, experienced candidates were selected by an impartial panel for the top judicial posts.
“The fact that the judiciary has been included from the beginning in the sectors to be reformed testifies to the general belief that it is facing challenges, which have to be addressed.
“Our position is that the judiciary should be one of the three independent powers of the state, the others being the executive and the legislature. There should be equality before the law, irrespective of who the defendant may be.”
Dr Manahl also expressed “dismay” over “recurrent reports of police brutality, in particular cases of torture and of the death of detainees in police custody”.
He said police brutality was a violation to human rights to life and freedom.
He implored the government to investigate and take disciplinary measures against rogue police officers guilty of torture and other human rights abuses.
He said the alleged atrocities called for the passing a law to establish an independent Human Rights Commission.
“I am dismayed about recurrent reports of police brutality, in particular cases of torture and of the death of detainees in police custody. I hope the relevant institutions, starting with the Police Complaints Authority, will act swiftly to investigate all such allegations, take the necessary steps to punish those responsible and remind all police officers of their duties.
“The right to life and the freedom from inhumane treatment are enshrined in Lesotho’s constitution. All state institutions have a particular responsibility to ensure that these fundamental rights are respected. The allegations of police brutality also underline the importance of passing a law to establish an independent Human Rights Commission. The EU has funded the preparation of this law, which is awaiting adoption in parliament,” Dr Manahl said.
A fortnight ago the government told Southern African Development Community (SADC) leaders that at least 30 rogue police officers will soon face criminal charges as government moves to act against brutality and restore public confidence in the police force.
The government’s report to the regional leaders came barely a month after government officials and victims of police brutality joined the growing local and international calls for Police Commissioner Holomo Molibeli to act against rogue officers who have been fingered in acts of brutality against civilians.
In the latest reports of police brutality, rogue officers allegedly tortured 49-year-old Nqosa Mahao of Ha Mabote, Maseru and 31 year-old Kabelo Ratia of Nazareth in the Maseru district. Mr Mahao was abducted from his Mabote home on 18 July on suspicion of hiding firearms on behalf of some rogue soldiers.
While several people have come forward with accusations, it is the alleged torture of Mr Ratia which has grabbed the headlines.
In one of the worst accusations of sordid and sadistic behaviour levelled against the police, Mr Ratia alleges that he was tortured to the point where he soiled himself and was made to eat his own faeces.
Mr Ratia was arrested for allegedly stealing M30 000 from a local businessman. During his detention Mr Ratia was allegedly subjected to horrendous torture and forced to implicate others including one Thabo May in the alleged theft of the businessman’s money. Mr May was hospitalised and eventually died of the injuries inflicted on him.
The upsurge of incidents of torture and deaths of suspects in police custody has firmly focused the international spotlight on Lesotho’s human rights records with some key development partners such as the United States government openly warning the government of a looming suspension of critical development assistance if correct measures are not taken.