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Mosito suspension threatens judiciary’s independence: analysts

Mohalenyane Phakela

PRIME Minister Thomas Thabane’s move to suspend Court of Appeal President Kananelo Mosito is borne out of self-serving expediency. It therefore undermines the independence of the judiciary with potentially disastrous consequences for the administration of justice, analysts have warned.

The analysts also say the “misuse” of the premier’s powers to act against judges make a salient case for ensuring that the ongoing multi-sector reforms process curtail or completely bar any sitting prime minister from playing any role in the hiring, impeachment and firing of judges.

Justice Mosito faces the axe after Dr Thabane slapped him with a letter demanding that he “show cause” why he should not be suspended for alleged misconduct charges.

If suspended, he will join Chief Justice Nthomeng Majara, who is also out in the cold, after she was suspended on 11 September 2018. Justice Majara was suspended over a litany of misconduct allegations including her alleged failure to timeously deliver justice and reduce the backlog of cases, estimated to be in the region of more than 4000.

Justice Mosito’s suspension, which will pave way for an investigation into his suitability or lack of it to hold office, comes less than a year after Dr Thabane recommended his re-appointment to the apex court. He had resigned from the same post in December 2016 after the then premier Pakalitha Mosisili moved to impeach him for alleged tax evasion. He was however, cleared of the charges.

Justice Mosito has been given seven days to respond to Dr Thabane’s ‘show cause’ letter dated 5 July 2019.

In the ‘show cause’ letter, the premier accuses Justice Mosito of interfering with the administrative functions of 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 his faction’s election into the ABC’s national executive committee (NEC) was challenged by three ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

The trio approached the High Court on 11 February 2019 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 which, 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. She subsequently wrote a scathing letter to Justice Mosito on 27 May 2019. 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 cases involving 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 lectures.

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.

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.

The suspension move comes barely eight months after Justice Mosito’s swearing-in and ironically it was Dr Thabane who fought tooth and nail to ensure his reinstatement after he was hounded out of office by the previous seven parties’ administration that was led by former Democratic Congress leader Pakalitha Mosisili.

In those eight months, the court of appeal, under Justice Mosito’s able stewardship, has finalised several cases as part of its contribution to the reduction of the huge backlog of cases.

Not surprisingly the move to suspend Justice Mosito has not gone down well with the Law Society of Lesotho as well as analysts. Last night, the Law Society filed an urgent High Court application seeking to have Dr Thabane interdicted from suspending  Justice Mosito, saying the move violated the independence of the judiciary.

“The cause for complaint by the prime minister is entirely the manner in which the Court of Appeal made decisions/ rulings in certain appeals that came before the court and/applied rules of that court as well as the enforcement of the rules of the said court. All these matters are within the domain, purview and competence and function of the Court of Appeal and having nothing to do with the inability to perform one’s functions or misconduct.

“The directive of the prime minister constitutes a bare and naked interference with the independence of the judiciary entrenched under section 118 (2) of the constitution as well as the contravention of the hallowed doctrine of separation of powers. Such a directive from the prime minister is a serious threat to the rule of law and constitutionalism and is arbitrary and an abuse of powers,” the Law Society states in its court papers.

Even the Africa Director for the International Commission of Jurists, Arnold Tsunga, described Dr Thabane’s move as an “incalculable assault on judicial independence and a threat to the rule of law in Lesotho”.

“The executive in Lesotho has developed notoriety in arbitrary decisions to threaten the judicial leaders through interfering with their security of tenure. Impeachment proceedings have been abused and used arbitrarily as an instrument to target judicial leaders and to force them to conform to the executive’s thinking. Such practices have gone on for far too long and are impermissible. They constitute an incalculable assault on judicial independence and they are a threat to the rule of law.

“The independence of the judiciary is a guarantee for legal protection of human rights and access to justice. The International Covenant on Civil and Political Rights, the African Charter on Human and People’s Rights and an array of binding international law instruments impose a duty on Lesotho’s authorities to establish, maintain and defend the independence of the judiciary. The Lesotho authorities are therefore implored to stop the culture of persistent interference with judicial independence,” Mr Tsunga said this week.

Another analyst Lira Theko said Dr Thabane’s push to suspend Justice Mosito had nothing to do with incompetence but his handling of ABC cases and the verdicts that were unfavourable to the ABC leader’s cause.

“The involvement of the prime minister in the judiciary is not illegal ( as per the current constitution) but we have to draw a line on his intervention to see if he is intervening as a prime minister where there has been misconduct on the part of a judge or he is simply intervening as a leader of a political party.

“Justice Mosito’s suspension is based on the manner in which he handled the ABC case and that means the premier has acted as a leader of political party and not as head of the executive. Lesotho’s judiciary has been under threat from the ruling parties who want to control the judicial heads.

“Dr Thabane reinstated Mosito last year and he expected the latter to act in his favour even when the principles of justice forbid such conduct,” Mr Theko said.

A lawyer, Advocate Letuka Molati, said that the suspensions of Justices Mosito and Majara undermined democracy and the rule of law.

“Democracy is under threat in that the executive is playing tyrant over the judiciary,” Adv Molati said.

He said the only way to safeguard the independence of the judiciary was to strip the premier of his powers to recommend the appointment and dismissal of judges.

Another analyst Monyake Moletsane said although Justice Mosito should have recused himself from the ABC cases involving Prof Mahao who was his boss at the NUL, Dr Thabane’s decision to suspend Justice Mosito was still without merit and was political.

“Looking Dr Thabane’s reasons for suspending Justice Mosito, it is clear that this was just a political move to oust him because he did not support the premier in the ABC cases,” Dr Moletsane said.

Dr Moletsane said the appointment and dismissal of judges should be entrusted to a Judicial Service Commission (JSC) that must be expanded to include other stakeholders from different sections of society to complement the current incumbents. .

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