MASERU — Embattled President of the Court of Appeal Justice Michael Ramodibedi on Friday filed a constitutional case at the High Court challenging Prime Minister Thomas Thabane’s order for him to step down. In the lawsuit, the first of its kind in Lesotho, Justice Ramodibedi is arguing that Thabane’s decision to ask him to resign is unconstitutional and is a threat to the rule of law and independence of the judiciary.
Thabane is cited as the first respondent, while Justice Minister Mophato Monyake and Law and Constitutional Affairs Minister Haae Phoofolo are the second and third respondents respectively. Also cited in the case are Police Commissioner Kizito Mhlakaza, registrar of the High Court Lesitsi Mokeke and the principal secretary in the Ministry of Justice. Justice Ramodibedi has also asked the court to interdict Thabane, Monyake, Mhlakaza and Mokeke from seizing his official vehicles.
He wants the court to declare the decision to deprive him of the use of the official vehicles “as an unlawful interference with the independence of the judiciary”. In his founding affidavit, Justice Ramodibedi says according to section 155 (4) (a) of the Constitution “no person or authority has the power to require a judge of the Court of Appeal to retire from judicial service”.
He says a judge of the Court of Appeal can only vacate office at the attainment of the age of 75. He says in terms of international protocol “the salaries, allowances, housing, transport and physical and social security of judges must be guaranteed in law and cannot be prejudicially altered for any improper or colourable purpose”.
Justice Ramodibedi says on April 22, he attended a meeting with Thabane where he was asked to step down because there was “a perception” that he and Chief Justice Mahapela Lehohla were responsible for the “mess” in the judiciary. Justice Ramodibedi says after he declined to step down, he became aware that the High Court Registrar Lesitsi was instructed to withdraw cars assigned to him. “Neither the Prime Minister, ministers nor the principal secretary have power and authority to write to the registrar and direct him how and what he should do in relation to the management of the resources and equipment of the judiciary,” he said.
“The very letter constitutes an unconstitutional attack on my independence as a judicial officer, in that through it government deprives me of resources which I need to enable me to discharge my duties with independence, dignity and effectiveness.
“This is a brazen violation of section 118 (3) of the Constitution,” he says. He adds the government had “crossed the red line” drawn by the Constitution which requires that courts be “independent and free from interference”. Justice Ramodibedi adds that the order to seize the cars also constitutes “an attack on the independence of the judiciary in the administration of its affairs and use of its resources as provided for by the Administration of Judiciary Act No 16 of 2011.”
He says Lesitsi, not Monyake, is the chief accounting officer and the administrator of judicial affairs “who discharges those functions not subject to the direction or control of any person, institution or authority except the President of the Court of Appeal”.
He says neither the Prime Minister, ministers nor principal secretary “have power and authority to write to the registrar and direct him how and what he should do in relation to the management of the resources and equipment of the judiciary”. Justice Ramodibedi says he was allocated the cars in his capacity as the Resident President of the Court of Appeal “for permanent use on the very understanding and appreciation of my constitutional and statutory responsibilities”. He says his application is urgent because he is unable to freely and effectively discharge his duties with dignity.
“There is a real and present danger that the vehicles may be impounded by the police at the behest of the respondents,” Justice Ramodibedi says. “I may also be manhandled by the police and thrown out of the vehicles wherever I am seen using them. My freedom of movement is in danger of being violated with impunity and in an undignified manner.” He also accuses Attorney General Tšokolo Makhethe of failing to defend the constitution.
He says Makhethe should have sued Thabane in defence of the constitution. “I aver that the Attorney General has failed to protect the constitution in relation to the subject-matter of this application and in the circumstances I am left with no option but to approach this Honourable Court in defence of the constitution.” Justice Ramodibedi is being represented by three senior lawyers, Advocates Zwelakhe Mda, Sakoane Sakoane and Salemane Phafane. The application will be heard on Tuesday.
Summary of the Justice Ramodibedi’s Case
• The government’s acts constitute an attack on the independence of the judiciary
• The attack is on three pillars of the judiciary:
• Security of tenure
• Financial security
• Institutional independence