PRIME Minister Thomas Thabane has launched a fresh bid to oust Court of Appeal president Kananelo 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.
This follows two failed bids by the premier to oust Justice Mosito. 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.
Dr Thabane subsequently launched a second bid to oust Justice Mosito with a 5 July 2019 letter demanding that the top judge “show cause” why he should not be suspended and impeached for allegedly interfering with the administrative functions of the Acting Chief Justice, ’Maseforo Mahase.
Justice Mosito is said to have interfered by entertaining an appeal by the Professor Nqosa Mahao-led faction of the All Basotho Convention (ABC) against Justice Mahase’s alleged tardiness in hearing and delivering judgement in a case in which Prof Mahao and others’ election into the ABC’s national executive committee (NEC) was challenged by three of ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).
The trio approached the High Court on 11 February seeking the nullification of the election of Prof Mahao and others, claiming the 1-2 February polls were marred by gross irregularities including “massive vote rigging”.
Exasperated by the frequent postponements of the case by Justice Mahase on the grounds that she was ill, the Mahao camp appealed to the apex court who, on 24 May 2019, ordered that the case be heard by any other High Court judge (s) besides Justice Mahase.
The Mahao faction went on to win the case after the High Court bench comprising of Justices Thamsanqa Nomngcongo (presiding judge), Moroke Mokhesi and Sakoane Sakoane dismissed Messrs Lehana, Sello and Mohapinyane’s application, ruling that the alleged vote rigging would not have changed the outcome of the elections.
Justice Mahase did not take kindly to the apex court’s decision to have the Lehana, Sello and Mohapinyane application dealt with by other judges and she subsequently wrote a scathing letter to justice Mahase on 27 May. In that letter she accused Justice Mosito of interfering with her administrative powers at the High Court. She also suggested that Justice Mosito was an interested party in the case that involved Prof Mahao as the latter was his (Justice Mosito’s) boss at the National University of Lesotho (NUL). Prof Mahao was until 31 May this year, the Vice Chancellor at NUL where Justice Mosito has been lecturing.
And on 5 July 2019, Dr Thabane seized on Justice Mahase’s letter of complaint and served Justice Mosito with a letter demanding that he “show cause” why he should not be suspended to pave way for investigations to determine whether or not he is suitable to remain as president of the apex court.
But Dr Thabane’s bid to oust Justice Mosito on the basis of Justice Mahase’s letter of complaint fell through on 24 July 2019 when Dr Thabane and Justice Mahase were both forced into an out of court settlement with Prof Mahao and his allies that led to the withdrawal of their letters to Justice Mosito. This after Prof Mahao and his allies had filed an application in the Court of Appeal to stop the impeachment of Justice Mosito on the basis of the 5 July 2019 “show cause” letter by Dr Thabane.
The out of court settlement was further buttressed by an apex court ruling that Dr Thabane could not impeach Justice Mosito on the basis of the 5 July 2019 “show cause” letter. The apex court ruling was delivered on 7 August 2019.
But barely two weeks later, Dr Thabane has renewed his bid to oust Justice Mosito on the basis of the latter’s continued employment at the NUL in violation of his (Dr Thabane’s) 12 June 2019 instruction to Justice Mosito to resign from the university.
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.
In rejecting Justice Mosito’s response, Dr Thabane states that, “You will recall that in my letter of the 12th June 2019 and addressed to you, I had brought to your attention that there is a reasonable likelihood that your continued employment relationship with the NUL, whilst you remain the president of the court of appeal, might compromise your independence, impartiality and competency as a judicial officer”.
“From your letter, it appears that that you continue to be employed with the NUL because you find the emoluments attached to the position of the president of court of appeal to be insufficient. As you put it, all judges of the court of appeal (the president included) get sitting allowances only per sitting. I find this excuse not to be valid.
“I was appalled to read and learn from your letter that you consider yourself not to hold a public office in the government of Lesotho. In other words, you do not consider yourself to be in the public service. Quite reluctantly, I will again refer you, the learned judge, to the provisions of the constitution. Section 154 defines public service to mean the service of the King in respect of the government of Lesotho.
“I doubt your reading of the law is correct in this regard (Justice Mosito’s argument that sitting on the Court of Appeal bench is not a salaried job). In terms of section 154 (1) and (2) of the constitution, a public office means any office of emoluments in the public service, including an office of an judge of the court of appeal (being an office the emoluments attaching to which, or any part of emolument attaching to which, are paid directly out of the monies provided by parliament). Therefore, it cannot be correct that the office of the president of the court of appeal is not an office of emolument in the public service.
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.
Dr Thabane’s previous moves were condemned by local and international experts including the Law Society of Lesotho and the International Commission of Jurists who described the moves as a calculated assault on the independence of the judiciary by the executive. The attempts to remove Justice Mosito also come against the background of the premier and other senior ABC’s criticism of the apex court which has ruled against them in the cases relating to ABC leader and premier’s battle for control of the party with his estranged deputy, Prof Mahao.