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FORMER Court of Appeal president Dr Kananelo Mosito says a government gazette and a letter from the royal palace secretariat declaring his removal from the helm of the apex court were “null and void” since they were issued after he had already resigned.
Dr Mosito also argues his 13 December 2016 resignation letter was duly received by King Letsie III’s Senior Private Secretary, Manehela Phosholi, on the same day rendering the impeachment proceedings against him academic.
In an exclusive interview with the Lesotho Times this week, Dr Mosito said he was “shocked” to receive a letter from Mr Phosholi dated 23 December 2016 announcing his removal as Court of Appeal president 10 days after his resignation.
Dr Mosito resigned after exhausting all legal means to be reinstated after being suspended on 12 February 2016 to pave the way for impeachment proceedings against him.
He had been appointed Court of Appeal president in January 2015, taking over from Justice Michael Ramodibedi who had also resigned after losing a protracted legal battle to stop his impeachment for alleged abuse of office.
However, not long after Dr Mosito’s appointment, King Letsie III appointed a three-member tribunal in February last year, at the advice of Prime Minister Pakalitha Mosisili, to investigate then top judge for allegedly failing to pay income tax between 1996 and 2014.
The tribunal was comprised of chairperson Justice Frederik Daniel Jacobus Brand, Justice Noel Victor Hurt, and Justice John Godfrey Foxcroft all from South Africa. The tribunal completed its proceedings on 20 October 2016 and later on submitted its report to King Letsie III.
However, before a determination on his fate was announced, Dr Mosito resigned citing his alleged persecution by Dr Mosisili and Attorney-General Tšokolo Makhethe King’s Counsel (KC).
Titled “Immediate resignation as President of the Court of Appeal of Lesotho”, part of the letter reads: “Your Majesty, kindly receive my profound gratitude for the opportunity given to me to serve your Majesty’s Nation in my capacity as the President of the Court of Appeal of Lesotho from 15 January to date.
“Although your Majesty may have seen some value in my professional worth, leading to my appointment to such a high judicial office, Your Majesty’s current Prime Minister and his Attorney-General clearly hold a different view.”
Dr Mosito argues there was a concerted effort to oust him from the helm of the Court of Appeal culminating with the establishment of the tribunal.
“The Attorney-General went out of his way to select three retired South African judges and handing their names over to the Prime Minister (on 17 December 2015) for Your Majesty to appoint to serve as members of the Section 125 Tribunal under the Constitution of Lesotho.”
He also casts doubt on the objectivity of the tribunal given that they were appointed by a complainant.
“As at present, all indications are that the justice system in the country has become paralysed and the rule of law jettisoned, if not relegated to the dustbin of history in our Kingdom.
“Whether guilty or not, no one can expect judges selected by the complainant Attorney-General to do justice in his own cause.”
Dr Mosito states there is no hope of any justice since Dr Mosisili’s government is still “momentarily in place”.
“I have therefore decided, as I do hereby do, to tender my resignation as President of the Court of Appeal of Lesotho forthwith. The effect hereof is that the purported impeachment proceedings are hereby aborted and there will be no need for Your Majesty to suffer the indignity of having to remove me pursuant to the binding advice of the Attorney-General’s selected former South African judges. I am prepared to come back soon to serve the Nation in the administration of justice when the political climate will be conducive.”
However, Mr Phosholi’s letter titled “Outcome of Tribunal” insists Dr Mosito’s resignation is rendered “ineffectual” by constitutional requirements. The letter also notifies Dr Mosito of his removal as Court of Appeal president.
“I refer to your letter of the 13th December, 2016 addressed to His Majesty. I write under the command of His Majesty to inform that, acting in accordance with section 125 (4) of the Constitution, His Majesty hereby removes you from office as judge and President of the Court of Appeal with effect from the 23rd December 2016.”
Mr Phosholi also states the decision was arrived at after the submission of a report by the three-member impeachment tribunal.
“In the report, the tribunal advised His Majesty to remove you from office,” he says.
“I wish to further inform you that, on legal advice, your letter of resignation is considered ineffectual on account of the mandatory and obligatory provisions of Section 125(4) of the Constitution.”
Dr Mosito’s removal also appeared as Legal Notice No. 156 of 2016 in the government gazette Volume 61 of 23 December 2016 titled: “Removal of President of Court of Appeal Notice, 2016”.
The legal notice reads: “I, King Letsie III, pursuant to section 125(4) of the Constitution of Lesotho, and acting in accordance with the advice of the Tribunal appointed under section 125(5) of the Constitution of Lesotho, remove from office – Dr Justice Kananelo Everrit Mosito KC – as judge and President of the Court of Appeal with effect from the 23rd of December, 2016.
“The appointment of the President of the Court of Appeal Notice 2015 is repealed.”
However, the former Court of Appeal president told this paper his removal “defied logic” since he had already resigned.
Dr Mosito said the move was possibly meant to humiliate him and taint his image since it was akin to impeachment.
He said the letter was “full of irregularities and flouted procedures” followed when removing a Court of Appeal president.
“When the King appointed me, he gave me an instrument of appointment signed by his own handwriting. But today I am being told in the letter by Phosholi that the King has removed me,” said Dr Mosito.
“If this was an act by the King as is the rightful procedure, I would have received an instrument of my removal bearing his handwriting. And as we speak, the King has not done so. Although Phosholi said he had enclosed a gazette from the King, there was no such a gazette from the King.”
He said politicians frequently wrote gazettes which they stated were signed by the King since Lesotho is a constitutional monarchy.
“In this instance, they have committed the same mistake,” Dr Mosito said.
“Removal is something akin to impeachment and its being used to taint my image. But the fact is that I can’t be removed when I have already resigned. One cannot be removed from an office he no longer occupies.”
He added: “Our constitution talks about the removal of a sitting judge or a Court of Appeal president. However, there is no mention of the removal of a judge who has resigned like I had already resigned.”
Dr Mosito said he decided to resign while outside the country on a tour of duty as an external examiner of various universities in the SADC region.
“After thinking long and hard about the situation in the country, I realised the country’s level of justice was at its lowest levels and it would be a shameful thing for me to remain a Court of Appeal president in a country where politicians are continuously meddling in the judiciary and bringing it into disrepute.
“I cannot be associated with the courts where politicians are meddling in the delivery of justice,” he added.
Attempts to get a comment from Mr Phosholi’s office were unsuccessful at the time of going to print.
For his part, Dr Mosisili’s spokesperson Motumi Ralejoe referred the Lesotho Times to the aforementioned Legal Notice No.156 of 2016 which stipulates Dr Mosito’s removal.