THE Law Society of Lesotho’s Constitutional Court bid to stop Prime Minister Thomas Thabane from ousting Court of Appeal President Justice Kananelo Mosito will now be heard on 23 September 2019.
This after Dr Thabane’s legal team on Thursday applied for the recusal of all local judges from the case. The case is currently before Justices Nomngcongo, Keketso Moahloli and Moroke Mokhesi.
In a recusal application filed last week Thursday by the Attorney General advocate Haae Phoofolo, he said the three judges have worked with Justice Mosito before and were likely to be compromised.
“There is a reasonable apprehension that they will as a result fall into the trench of being biased towards the Acting Chief Justice (‘Maseforo Mahase) or against her of having sat in The Court of Appeal, have affinity towards that court and the president (Justice Mosito),” Adv Phoofolo said.
One of the Law Society’s lawyers, Adv Monaheng Rasekoai, recently told the Sunday Express that the case will now be heard on 23 September and on that day, the Constitutional Court will hear arguments on the application for the recusal of local judges.
In the meantime, the court interdict barring Dr Thabane from suspending and recommending the setting up of a tribunal to impeach Justice Mosito remains in force.
“The case has been postponed to 23 September this year. This is because the government has asked all local judges to be recused from the case,” Adv Rasekoai said.
The Law Society argues that Dr Thabane’s move to oust Justice Mosito is without merit and “constitutes a bare and naked interference with the independence of the judiciary”.
Dr Thabane, Acting Chief Justice ‘Maseforo Mahase, His Majesty King Letsie III and Attorney General Haae Phoofolo are first to fourth respondents respectively in the application.
“The first respondent (Dr Thabane) be interdicted from recommending to the third respondent (His Majesty) the suspension of the President of the Court of Appeal pending finalisation of the main application (still pending before the Constitutional Court),” the Law Society states in its court papers.
“The first respondent (Dr Thabane) must be interdicted and/or restricted from advising His Majesty King Letsie III to establish a tribunal aimed at inquiring into the fitness of the President of the Court of Appeal to hold office on the basis of the first respondent’s letter of 14 August 2019.
Dr Thabane renewed his bid to oust Justice Mosito on 14 August 2019.
The premier argued that Justice Mosito’s employment at the National University of Lesotho (NUL) “might compromise your independence, impartiality and competency as a judicial officer”.
In the 14 August 2019 letter to Justice Mosito, 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.
And on 22 August 2019, the Constitutional Court issued an interim interdict barring Dr Thabane from suspending and recommending the setting up of a tribunal to impeach Justice Mosito pending the finalisation of the application by the Law Society for a final order barring Dr Thabane from acting against the top judge.
In his latest application for the recusal of local judges, Adv Phoofolo said Dr Thabane was interdicted without being addressed on the interim prayers, and argued that by granting the orders, Justice Nomngcongo had been unfair to the government.
It remains to be seen whether or not the recusal application will be granted when the case is heard on 23 September 2019.