NON-GOVERNMENTAL organisations, Development for Peace Education (DPE) and the Lesotho Council of Non-Governmental Organisations (LCN) have joined the growing chorus of local and international condemnation of Prime Minister Thomas Thabane’s moves to suspend and impeach Court of Appeal president Justice Kananelo Mosito.
On 5 July 2019, Dr Thabane wrote to Justice Mosito demanding that he “show cause” why he should not be suspended and impeached for allegedly interfering with the administrative functions of Acting Chief Justice ’Maseforo Mahase. (See story above).
The move has already been condemned by the Law Society of Lesotho who have since launched a Constitutional Court application to bar Dr Thabane from going ahead with the suspension and impeachment. It has also been condemned by the International Commission of Jurists (ICJ) whose Africa Director, Arnold Tsunga, recently told the Lesotho Times that this amounted to an interference with the independence of the judiciary.
And on Tuesday, the DPE’s Education Researcher, Thaabe ‘Moso, told the media that in seeking to suspend and impeach Justice Mosito, Dr Thabane had acted beyond his prescribed powers in contravention of the national constitution which guarantees the independence of courts in executing their mandate.
“The letter of 5 July 2019 through which the prime minister directs the president of the Court of Appeal to ‘show cause’ why the prime minister may not advise that the president of the Court of Appeal be suspended undermines the national constitution and is tantamount to an executive overreach,” Mr ‘Moso said.
He said the principle of separation of powers espoused by the national constitution is cardinal to good governance and should be defended by all Basotho.
“Besides defining the roles of organs of state authority, the main purpose of the constitution is to limit excessiveness and arbitrariness on the part of the executive which is vested with enormous powers. In the Lesotho constitution, section 118 (2) which guarantees independence of courts in discharging their functions and freedom from any interference, is an example of such.
“For the Prime Minister to contemplate invoking his right to advise the King (Letsie III) to suspend the president of Court of Appeal because the latter did not dispense his duties “well” in the matters related to the All Basotho Convention (ABC) is seeking to act beyond his prescribed powers.”
Mr ‘Moso said that section 125 (3) of the national constitution states that a judge could only be suspended and impeached on account of inability to discharge his duties as a result of an infirmity of the body or mind, or misbehaviour. He however, said there was no mention of such inability on the part of Justice Mosito in Dr Thabane’s “show cause” letter.
On her part, LCN’s Democracy and Human Rights Commission Coordinator Advocate Lebohang Leeu said while the independence of the judiciary was a cornerstone of constitutional democracy, there was “a lot of interference by the executive in the judiciary”.
“Notable incidences (sic) have been in the appointment and impeachment of judges by (a sitting) prime minister…”
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Former premier Pakalitha Mosisili recommended the impeachment of Justice Mosito who then resigned ahead of the process to oust him in December 2016. Justice Mosito only bounced back on 1 August 2-17 after being re-appointed by Dr Thabane who ironically is working flat out to remove him.
Adv Leeu also said the High Court and the Court of Appeal were polarised and their handling of cases had in some instances resulted in “preposterous outcomes on cases” which had caused the nation to lose faith in the justice system.
“The courts have also failed to articulate consistent methodology for ensuring the separation of powers. The inconsistencies are depicted in the preposterous outcomes. This constitutional turf battle has had undesirable consequences for the nation. The people have lost faith in the justice system. Our courts fail to live up to the old adage that justice must not only be done but must be seen to be done.”
Adv Leeu said divisions within the ABC and its coalition partner, the Basotho National Party (BNP) posed a threat to peace and stability and that the power struggles affected the parties’ ability to govern.
Ever since its February 2019 elective conference, the ABC has been locked in a bitter power struggle pitting Dr Thabane and other senior party officials against Professor Nqosa Mahao who was elected to the deputy leader’s position. Dr Thabane and others argue that Prof Mahao should not have been elected to the top post ahead of more seasoned party stalwarts.
Factions have also emerged in the BNP, pitting incumbent deputy leader Chief Joang Molapo against current spokesperson Machesetsa Mofomobe who is vying to take over from Chief Molapo at the party’s much-delayed electoral conference.