- as attorney general challenges his “unlawful” dismissal by the premier
PRIME Minister Moeketsi Majoro and fired Attorney General Advocate Haae Phoofolo are now on a collision course after the latter elected to challenge his sacking, saying the premier had no authority to dismiss him.
Adv Phoofolo delivered his message to the premier in a strongly worded letter penned by his lawyers, Mei and Mei Attorneys, on 17 September 2020. The letter was written just three days after Dr Majoro effectively fired Advocate Phoofolo by ordering him to go on “terminal leave” pending the expiry of his contract in February 2021. The leave is with effect from Monday 14 September 2020.
In their letter to Dr Majoro, Adv Phoofolo’s lawyers said his dismissal and the subsequent attempts to replace him are illegal because only His Majesty King Letsie III is empowered by the constitution to suspend or remove him from office.
Adv Phoofolo was coy on his next move when contacted for comment this week. He said he would wait for Dr Majoro’s response to his letter before deciding what action to take concerning the “illegality” (of his forced leave).
In his letter to Adv Phoofolo, Dr Majoro said it was necessary for the former to go on terminal leave ahead of his departure. This is to facilitate the search for his successor which must begin now ahead of the expiry of his contract in five months’ time.
The 73-year-old Adv Phoofolo had appeared to accept his fate and even told the Lesotho Times last week that he would use his retirement to recover from an undisclosed illness and also “spend more time with my wife and grandchildren”.
But in a new turn of events, Adv Phoofolo appears to have resolved to challenge his dismissal. His lawyers have now declared before Dr Majoro that his dismissal is “illegal” because it was done by the premier “who has no power” to remove an AG from his job.
Adv Phoofolo argues that he can only be dismissed by King Letsie III who appointed him to the post in the first place in line with the constitution.
Section 40 (1) of the constitution states that “the power to appoint a person as attorney general or to act in the office of the attorney general shall vest in the king acting in accordance with the advice of the prime minister”.
The same section provides for the removal of the attorney general on the grounds of misconduct, illness or “infirmity” of the mind. It however, states, in subsection six, that the attorney general can only be “removed from office by the King if the question of his removal from office has been referred to a tribunal appointed (on the advice of the prime minister) and the tribunal has recommended to the King that he ought to be removed…”
Government sources this week told this publication that Adv Phoofolo’s warning letter to Dr Majoro was prompted by news that the premier had wasted no time in advising King Letsie III to appoint Deputy Attorney General Tšebang Putsoane as the acting attorney general.
“Dr Majoro’s letter advising the King to appoint Adv Putsoane as acting attorney general was dispatched to His Majesty on 15 September, a day after the premier ordered Adv Phoofolo to go on terminal leave.
“Ntate Majoro’s letter got a positive response and the processes of gazetting Adv Putsoane’s acting appointment are underway,” a source said.
But Adv Phoofolo argues that the premier’s decision to send him on terminal leave is “illegal” and he should not be replaced as long as the alleged illegality has not been corrected.
“According to our instructions, our client (adv Phoofolo) was employed as the attorney general of the Kingdom for a period of 36 months with effect from 6 February 2018,” Adv Phoofolo’s lawyers state in their 17 September 2020 letter to Dr Majoro.
“We confirm that the appointment was made in accordance with the provisions of section 140 (1) of the constitution by His Majesty the King.
“It follows that the appointment and its associated benefits such as leave have to be dealt with by the appointing authority. The attorney general has instructed us to respond to your letter dated 14 September 2020 in terms of which you have purported to exercise the power to effectively suspend him from office pending the expiry of his employment contract on 6 February 2021.
“In that letter you make mention of the fact that you would want to start looking for his replacement with the aim of realising the ambitions of the new government. You further suggest that the government anticipated that there would be considerable increased workload resulting from the on-going reform processes.”
The lawyers then argue that Dr Majoro does not have the powers to suspend Adv Phoofolo or even send him on forced leave.
“We wish to draw your attention to the fact that…you have no powers at law to suspend and/or place the attorney general on forced leave as you purported to do in view of the fact that your office is not the appointing authority in terms of section 140 (1) of the constitution… In the same way we record that you are not entitled to replace our client unless the processes (of removing an attorney general) envisaged in section 140 of the constitution have been followed.
“We confirm that the import and implication of your letter suggests that you suspended and/or forced our client to proceed on what you term terminal leave simply because you imply that he is not or would not be competent enough to deal with the challenges facing his office. Our instructions are that the termination of our client’s contract must be handled in accordance with section 140 (1) of the constitution …
“In the circumstances, we confirm that your office is not entitled to exercise the powers in the manner it did in relation to the office of the attorney general. However, our client has reconsidered his position and decided that no practical purpose will be served by engaging in legal action and strictly reserves his rights in this regard.”
Adv Phoofolo last night told this publication that although it was the norm for a deputy to be appointed in an acting capacity when the substantive holder left office, his main concern was the illegal nature of his removal by Dr Majoro.
“That appointment (of Adv Putsoane as acting attorney general) would be in order because in law, it is proper for a deputy to fall in the shoes of the substantive holder and hold the position in an acting capacity until a substantive holder takes up the position.
“But on the issue of the illegality of the forced leave, I await the response of the prime minister to my attorney’s letter. Only after that response will I be able to decide what to do about what I allege to be an illegality,” Adv Phoofolo said.
Dr Majoro’s press attaché, Mosito Moqhekoana, yesterday promised to revert back to this publication after obtaining comment from the premier on the issue.
“My boss was unreachable over the phone the whole of Tuesday and so we could not discuss your questions. I am preparing to meet him today (yesterday) and as soon as I have his responses ready for you, I will send them,” Mr Moqhekoana said.
He had not done so at the time of going to print last night.
Although it appeared as though Adv Phoofolo had been fired at Dr Majoro’s own volition, it has since emerged that the premier took the decision at the behest of his All Basotho Convention (ABC)’s national executive committee (NEC).
ABC secretary general Lebohang Hlaele yesterday said the office of the AG required a younger and more energetic person. The ABC had thus recommended that Dr Majoro appoints someone to replace Adv Phoofolo whom he said was not in good health and was “no longer fit to remain in office”.
Government sources said the ABC’s NEC has also demanded the sacking of Acting Chief Justice ‘Maseforo Mahase as punishment for what is being described as her “clandestine meeting” with Adv Phoofolo to recommend the appointment of five new High Court judges, namely Adv Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and ‘Maliepollo Makhetha.
The duo is accused of forwarding these names for appointment to King Letsie without the knowledge and participation of Law and Justice Minister Professor Nqosa Mahao. Prof Mahao is also the deputy leader of the ABC. There is no love lost between Prof Mahao and Judge Mahase, after the latter passed judgements nullifying the former’s election as ABC deputy leader in February 2019. All her judgments were overturned on appeal. Mr Hlaele has already gone to court to seek Justice Mahase’s impeachment on the basis of her “gross incompetence” among other reasons.
Adv Phoofolo and Judge Mahase’s recommendations to appoint the five torched a storm with Prof Mahao saying the whole process had been surreptitiously handled. The duo’s meeting did not even constitute a quorum in terms of Judicial Service Commission (JSC) rules, it was argued. The JSC comprises of the chief justice, the attorney general, the chairperson of the Public Service Commission and a nominated judge. But the JSC itself defended the action with its secretary ‘Mathato Sekoai saying Adv Phoofolo and Judge Mahase’s meeting constituted a legitimate quorum in terms of JSC rules. She said there was nothing in the law that allowed politicians to partake in the appointment of judges.
Prof Mahao had argued the appointment of substantive judges should be held in abeyance until after the implementation of the judicial reforms recommended by the Southern African Development Community (SADC) to ensure the best candidates are chosen in an open and transparent process. The whole process was halted after King Letsie declined to proceed with appointing the five nominees.
Should he go and ahead and sue, Adv Phoofolo would have joined an ever-growing list of Thabane appointees who have sued Dr Majoro over their dismissals since he replaced the former premier. Mr Thabane failed to last the distance after he was forced to step down by his own ABC party over a host of issues including allegations that he and his wife, ‘Maesaiah, had murdered his ex-wife, Lipolelo on 14 June 2017.
Since taking over on 20 May 2020, Dr Majoro has dismissed former Government Secretary Moahloli Mphaka, principal secretaries (PSs) and other Thabane appointees, partly to appease the powerful ABC’s NEC but also to ensure he has government officials who are loyal to him like any new premier would want.
Some of those dismissed, including PSs ‘Mabotle Damane (Communications, Science and Technology ministry), Mothabathe Hlalele (Public Works) and ‘Maseithati Mabeleng (Forestry, Range and Soil Conservation), have not taken their dismissals lying down.
They have petitioned the High Court to revoke their dismissals. The court is yet to rule on their applications.