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Top lawyers up in arms

 

King’s Counsel Salemane Phafane, Motiea Teele, Karabo Mohau, Zwelakhe Mda and Attorney Qhalehang Letsika challenge Advocate Kananelo Mosito (KC)’s pending appointment as Court of Appeal president.

Tefo Tefo

FIVE senior lawyers have objected to the anticipated appointment of King’s Counsel (KC) Kananelo Mosito as president of the Court of Appeal.

The solicitors — Salemane Phafane (KC), Motiea Teele (KC), Karabo Mohau (KC), Zwelakhe Mda(KC) and Qhalehang Letsika — on Friday issued a statement in which they insisted the appointment would undermine judicial independence and also bring Lesotho’s legal profession into disrepute.

Although the declaration, titled “Public Statement Issued by Concerned Legal Practitioners of Lesotho” does not mention Advocate Mosito (KC) by name, judicial sources yesterday told the Sunday Express his appointment as the new head of the Court of Appeal could take place this week.

The sources further said all the necessary processes had been completed and the matter was now before King Letsie III for his signature before a gazette is issued confirming the appointment.

However, the five lawyers have strongly objected to the appointment and advised Advocate Mosito to take a “principled position” and reject the post.

The statement — which has been copied to Prime Minister Thomas Thabane, Minister of Law and Constitutional Affairs Haae Phoofolo, Minister of Justice and Correctional Services Motlohi Maliehe, Acting President of the Court of Appeal, Chief Justice Nthomeng Majara, Attorney General Tšokolo Makhethe, Law Society of Lesotho, diplomatic missions in Lesotho, Southern African Development Community Lawyers’ Association, Commonwealth Lawyers’ Association, International Commission of Jurists  and Media Institute of Southern Africa  Lesotho Chapter —reads: “We, the undersigned legal practitioners, have discovered with a sense of shock and dismay that one of our number in the legal profession has been tipped for appointment as President of the Court of Appeal.

“While we do not know the rationale behind this hurried appointment in view of the prevailing situation in the country, we wish to place on record our reservations and strong objections regarding this appointment for the following reasons:

  • The Court of Appeal is the highest court in the country and plays a significant role in the administration of justice. The hurried appointment is likely to cause potential misconception which is likely to bring the administration of justice into disrepute.
  • As a profession, we have always maintained that appointments to the judiciary must be made on merit through transparent and consultative processes. In particular, we have always maintained that such appointments must be made in consultation with all stakeholders.
  • We are reliably informed that the colleague so tipped for appointment has been and continues to be the legal representative of the authority responsible for recommending his appointment. The perception created by this appointment, particularly in view of this set of factual matrix, is that it is done as a means of patronage.
  • This appointment comes hard on the heels of the perception that there is a concerted effort by the powers-that-be to capture key institutions of state.”

The lawyers also argue Advocate Mosito’s appointment is being made by an administration which does not have the powers to make such key decisions as it is only a caretaker government. After parliament was dissolved on Friday ahead of the February 2015 snap election, Dr Thabane, who came to power in June 2012 as head of a tripartite government, automatically became leader of a caretaker administration in line with the country’s constitution.

Lesotho was forced to go for an election two years early after the coalition government, comprising the premier’s All Basotho Convention, Lesotho Congress for Democracy (LCD) led by Deputy Prime Minister Mothetjoa Metsing and Thesele ‘Maseribane’s Basotho National Party (BNP), collapsed amid claims by the LCD leader that Dr Thabane was not consulting him when making key governance decisions in line with the tenets of their alliance.

The collapse led to mediation by several stakeholders, top among them SADC, resulting in the signing of the Maseru Facilitation Declaration (MFD) on 2 October 2014, brokered by the regional bloc. Under the MFD, signed by leaders whose parties had seats in the National Assembly,  parliament , which Dr Thabane had prorogued for nine months on 10 June 2014 to avoid a no-confidence vote, was made to re-open on 17 October and dissolved on 5  December with a snap election held towards the end of February 2015. Initially, Lesotho was supposed to hold its general election in 2017.

However, according to the five lawyers, key decisions such as appointing the Court of Appeal president cannot be made by a caretaker government, hence their statement.

The lawyers’ statement continues: “We wish to observe that this appointment is made following the dissolution of parliament; when things being normal, the current government, by its nature, is transitional and ought not to be making key appointments.

“We also observe that the appointment flies in the face of decisions made in the Double Troika Summit of Heads of State and Government in Pretoria, South Africa on 15 September, 2014 (of ensuring Lesotho returns to stability).”

The lawyers also urged Advocate Mosito to decline the top job, noting: “Accordingly, we advise our learned colleague who has been approached to take a principled position not to accept this appointment.

“We wish to remind him that in countries such as Kenya, judges appointed in similar controversial circumstances have been forced to resign. It is a fate we do not wish to be visited upon our learned colleague.”

The lawyers also strongly warned the government “to refrain from bringing the administration of justice into disrepute”.

The statement adds: “We appeal to the powers-that-be to avoid bringing the administration of justice into disrepute and undermining the independence of the judiciary.

“This is because judicial officers serve an important role in ensuring that human rights are protected and that all citizens have recourse to courts of law in the event that such rights are violated, well knowing that their disputes will be determined fairly and objectively.”

Attempts to contact Advocate Mosito were not successful yesterday as his mobile phone was not being answered, while three of the five lawyers concerned, acknowledged writing the letter when contacted by the Sunday Express yesterday.

Advocate Mosito, who is also an acting judge of the High Court who presides over Labour Appeal Court cases, is dean in the Faculty of Law at the National University of Lesotho (NUL).

He also runs his own law firm, known as KEM Chambers.

Meanwhile, Advocate Mosito’s anticipated appointment comes about eight months after former Court of Appeal President, Justice Michael Ramodibedi, quit the post in a huff.

Justice Ramodibedi was left with little choice but to resign in April after losing a case before the Court of Appeal, in which he wanted to stop impeachment proceedings instituted against him by Dr Thabane.

The premier had advised King Letsie III to establish a tribunal to investigate Justice Ramodibedi for possible misconduct. He had been at the helm of the Court of Appeal since 2008.

Justice Douglas Scott has been the Acting President of the Court of Appeal since Justice Ramodibedi’s resignation in April.

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