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Mosito suffers blow


Lekhetho Ntsukunyane

Justice Kananelo Mosito’s fight against impeachment suffered a massive blow on Friday when the Court of Appeal upheld a ruling made against him by the High Court.

The suspended Court of Appeal president had wanted the apex court to stop his prosecution for alleged tax evasion, which Prime Minister Pakalitha Mosisili had used to convene a tribunal for his possible impeachment, arguing the litigation was discriminatory as he had been singled out among his peers and also that as a judicial officer, he was shielded from prosecution by the state.

However, a panel of five judges from South Africa, namely JC Kriegler, P Musonda, RW Nugent, JV Van Der Westhuizen and JBZ Shongwe, ruled Justice Mosito’s argument was “fundamentally misdirected”.

Friday’s ruling paves the way for the judge to stand trial for allegedly violating the country’s tax laws.

Dr Mosito was appointed Court of Appeal president in January 2015, taking over from Justice Michael Ramodibedi who had resigned after losing a protracted legal battle to stop his impeachment for alleged abuse of office.

But the five SA judges observed his appointment was contentious from the onset, “both politically and professionally”, before they went on to dismiss his appeal.

The judges noted: “His appointment early last year during a political window preceding a general election was made on the recommendation of a man who was soon to lose office as Prime Minister (Dr Thomas Thabane) to a bitter opponent. The incoming Prime Minister (Dr Pakalitha Mosisili) made plain that he thoroughly disapproved of the substance and timing of the appointment.

“Professionally, the nomination was contentious as the appellant’s elevation to such high judicial office straight from the ranks of the Bar was seen as arguably unduly swift.

“During the ensuing months, the new Prime Minister and his Attorney General made vigorous politico-legal and diplomatic attempts to have the appointment nullified. These came to naught and in mid-July 2015, the appellant presided in the Court of Appeal for the first time. His tenure was to prove stormy. Within a matter of weeks, the first respondent (Director of Public Prosecutions {DPP}) issued an indictment charging the appellant with 19 counts of failing to render annual returns of income (dating back to 1996), followed by a notice of trial in the High Court for 31 August 2015.”

This, the judges said, was to trigger a succession of interrelated urgent applications, “raising a flurry of allegations and counter-allegations.”

The judges further said there were “untimely five separate applications involving an impressive array of opponents ranging from the Prime Minister, the Attorney General and the appellant’s colleagues on the Bench and at the Bar to the Director of Public Prosecutions and Commissioner General of the Revenue Authority.

“But notwithstanding this ostensibly wide-ranging and tangled skein of litigation, on closer examination, the issues on appeal before us fall within a narrow ambit and are quite clearly defined. Some of the original issues have fallen away, others have not been pressed on appeal and what remains has, in large measure, been disentangled by the court a quo.

“We are indeed in general agreement with the reasoning and findings in the court below and can therefore be relatively brief.

“In this court, as in the court below, it was strenuously argued that the issue in this case is the independence of the judiciary in Lesotho, independence articulated and guaranteed in the Constitution, and with it the preservation of the separation of state powers and the rule of law. At the same time, the vital importance of these values was emphasised by reference to extensive comparative authority. None of this can conceivably be challenged. These values are indeed inviolable and vital for the preservation of democracy in Kingdom of Lesotho.

“But in view, the argument advanced on behalf of the appellant (Justice Mosito) is fundamentally misdirected. It confused two separate and distinct constitutional mechanisms: on the one hand there is the general power (and duty) of the state to prosecute crime, and on the other hand the power of His Majesty the King, at the instance of the Prime Minister, or the President of the Court of Appeal, as the case maybe, to remove errant judges from office.”

They said there was no suggestion in section 125 of the constitution, “however broadly interpreted, nor in any other part of the constitution, to support the truly startling proposition that the removal mechanism of section 125 overrides or qualifies the prosecutorial power of the Director of Public Prosecutions.”

The judges indicated there was nothing “in the wording or context of section 125 (of the Constitution) to suggest that members of the judiciary in Lesotho are ex officio shielded from prosecution, that a judge is not “any person” within the meaning of section 99(2)(a), that judges are not included in this strikingly widely designated category.”

On the contrary, they said, such a construction would not only fly in the face of section 99, “but would be in conflict with the rule of law and the constitution’s explicit principle of equality before the law enshrined in section 19. The construction, moreover, smacks of elitism and privilege, sentiments at variance with universally accepted judicial ethics.”

They said judges occupy high office “but they are not princes; they are servants.”

They noted for essentially the same reason, Justice Mosito could not, in the instant proceedings establish his complaint of unconstitutional discrimination “in that he was singled out for prosecution for a transgression that is rife among his peers. Accordingly, he abandoned the attempt to have the tax affairs of his colleagues subjected to scrutiny.

“But whether and if so how he could raise and prove such discrimination, and what effect it would have on the viability of the charge or the appellant’s guilt or blameworthiness, are not matters that can be determined in these proceedings. In the result the main thrust of the appellant’s case became – and remains – the constitutional argument based on the principle of judicial independence.”

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