- calls premier “incompetent” and “bitter”
COURT of Appeal president Justice Kananelo Mosito has come out guns blazing against Prime Minister Thomas Thabane, saying the latter’s “unlawful” moves to try and suspend him stem from the bitterness of seeing his faction of the All Basotho Convention (ABC) lose its case against its party rivals in the appeal court.
This follows Dr Thabane’s 5 July 2019 letter to Justice Mosito demanding that the apex court boss “show cause” why he should not be suspended and impeached for allegedly interfering with the administrative functions ofActing Chief Justice ’Maseforo Mahase.
This after Judge Mahase had written to Justice Mosito over differences that stem from the ongoing litigation by the old and new ABC’s national executive committee (NEC) factions that are vying for control of the party. Judge Mahase has apparently been ruling in favour of a faction of the ABC supported by Dr Thabane but her judgments have been overturned on appeal. Critics accuse her of being desperate to be confirmed in her position by appeasing the premier. A power struggle ensured in the ruling ABC in the aftermath of the party’s February 2019 elective conference which ushered in Professor Nqosa Mahao and others into the party’s NEC against the express wishes of Dr Thabane. Prof Mahao’s election was subsequently challenged in the High Court on 11 February 2019 by the trio of ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).
The trio approached the High Court seeking the nullification of the election of Prof Mahao and others, claiming the 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 subsequently wrote a scathing letter to Justice Mosito accusing him of interfering with her duties when he ordered that the Lehana case be allocated to different judges.
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 in office as president of the apex court.
In his letter, Dr Thabane said that Justice Mahase “indicated that you (Justice Mosito) issued orders which interfere with the administrative powers of the office of the Chief Justice.”
“You (Justice Mosito) made an order in a recent case of the ABC versus Lehana and others that the matter be heard by a different judge despite the same matter being part heard in the High Court…
“On the basis of the afore-going, I found it imperative as the head of government of the Kingdom of Lesotho to come to the rescue and preserve the reputation of the judiciary, which is likely to be eroded if not addressed on time. You are hereby directed to ‘show cause’ why I may not recommend that you be suspended from your office, in terms of Section 125 (7) of the constitution of Lesotho, pending investigations to be made on your competency as the president and the justice of the Court of Appeal,” Dr Thabane wrote.
Dr Thabane has since withdrawn his “show cause” letter meaning that Justice Mosito no longer faces the prospect of being suspended. Justice Mahase has also withdrawn her 27 May 2019 letter of complaint to Justice Mosito. Dr Thabane and Justice Mahase withdrew their letters yesterday after reaching an out of court with the Mahao camp which had filed a Court of Appeal application to block the suspension of Justice Mosito. (See story on page 8).
Before yesterday’s withdrawal of Dr Thabane and Justice Mahase’s letters, Justice Mosito had already replied by accusing the premier of plotting his ouster on the basis of “political expediency”. Justice Mosito said there was absolutely no legal basis for Dr Thabane to recommend his suspension.
Justice Mosito said it was clear that the premier was “trying to come up with a reason for the invocation of section 125 (7) of the constitution” which allows him to recommend his suspension “simply because he is unhappy with the Court of Appeal’s decision in the ABC vs Lehana and others case which went against his part of the NEC of the ABC”.
“The issues itemised in the (“show cause”) letter and which were gleaned from the acting chief justice (Mahase)’s letter, are exclusively judicial in nature. Those are matters within the judicial remit of the Court of Appeal. Neither the acting chief justice nor the prime minister has a constitutional or statutory authority to deal with such matters. In any event, the matters raised therein were decided by the Court of Appeal as a judicial authority comprising five judges. Those are neither instances of judicial misbehaviour nor inability to perform.
“For that reason, the prime minister has no constitutional authority to initiate the section 125 proceedings on the basis of such issues. It is thus incompetent for the prime minister to recommend my suspension in this regard”.
Justice Mosito said his mooted suspension was unconstitutional in that the removal of a judge could only be done after the issue had first been referred to a tribunal appointed for the purpose.
He said in his case, the question of his suspension had not been referred to a tribunal and it therefore followed that his suspension, could not be carried out in the circumstances.
“There is yet another reason why such a recommendation (to suspend) would be indefensible in law. Section 125 (7) provides that the King, acting in accordance with the advice of the prime minister, in the case of the president (of the Court of Appeal), may suspend the appointed judge from the exercise of the functions of this office. This can only be in a case where a tribunal has been appointed and is in existence.
“The question of whether judicial misbehaviour or inability to perform has to be investigated must have been referred to the King. No such situation exists in the present situation. For the above reasons, it is in law inappropriate and unacceptable for the prime minister to resort to the contemplated action.”
Justice Mosito said given the patent illegality of Dr Thabane’s contemplated moves to suspend him, he was convinced that the premier was acting out of political expediency- out of sour grapes after the apex court ruled against the ABC faction that he supported.
“In essence, the prime minister is trying to come up with a reason for the invocation of the terms of section 125 (7) of the constitution simply because he is unhappy with the court of appeal’s decision in ABC v Lehana and Others, which went against his part of the NEC of the ABC. This violates section 118 (2) of the constitution of Lesotho.
“It is on the basis of above reasons that I strongly urge the prime minister against continuing with his contemplated action of recommending to the King that the President (of the Court of Appeal) be suspended,” Justice Mosito concludes in his letter to Dr Thabane dated 11 July 2019.
The premier’s move to try and suspend Judge Mosito had attracted local and international condemnation. International organisations like the International Commission of Jurists (ICJ) had condemned the move saying the suspension would both undermine and erode the independence of the judiciary.