- as High Court nullifies premier’s decision to effectively fire him
Mohalenyane Phakela
ATTORNEY General Haae Phoofolo has finally won his court battle against Prime Minister Moeketsi Majoro’s bid to oust him.
This after High Court Judge Molefi Makara this week nullified Dr Majoro’s decision to effectively fire the AG by sending him on forced leave pending the expiry of his contract in February 2021.
Justice Molefi Makara also set aside Dr Majoro’s decision to appoint Deputy Attorney General Adv Tšebang Putsoane as the Acting Attorney General.
Dr Majoro, King Letsie III, the Office of Attorney General and Adv Putsoane were cited as the first to fourth respondents respectively in the lawsuit.
“The first respondent (Dr Majoro)’s decision of sending the applicant on compulsory leave pending the applicant’s termination of contract (sic) is hereby reviewed, corrected and set aside,” Justice Makara ordered.
“The first respondent’s act of advising His Majesty the King to appoint the fourth respondent, Adv Tšebang Putsoane, as Acting Attorney General is hereby reviewed, corrected and set aside. The appointment of the fourth respondent as Acting Attorney General is hereby reviewed, corrected and set aside.” No reasons were given for the judgement.
Commenting on the verdict yesterday, Adv Phoofolo said although he had played his part as attorney general and wanted to make way for a younger person, he had nonetheless filed the application to force the government to act within the constraints of the law regarding his exit.
“This is not a personal victory but a victory for the rule of law. I do not consider myself better than anybody but all I wanted was for the law to take its course. I wanted the government to act legally and not pounce on people without considering the legal implications or consequences of its actions. We should adhere to the rule of law.
“I did not want to leave my post with that kind of legacy (of being forced out). I wanted to secure the position for whoever will take over when my contract expires in February. I have no wish to return to that position at all. I am old and it is time for the younger generation to take over,” Adv Phoofolo said.
Dr Majoro had effectively fired Adv Phoofolo on 14 September 2020 when he wrote to him, sending him on terminal leave with immediate effect. The premier said it was necessary for Adv Phoofolo to go on leave to facilitate the search for his successor ahead of the expiry of his contract in February 2021.
But government sources insist that the real reason for Adv Phoofolo’s ouster was the ruling All Basotho Convention (ABC) national executive committee (NEC)’s decision to have him fired and replaced by a younger person.
The NEC felt Adv Phoofolo was now too old and “incompetent”. There was also anger over his role in the appointment of five new judges.
Adv Phoofolo had met with Acting Chief Justice ‘Maseforo Mahase on 20 August 2020 in their capacity as members of the Judicial Service Commission (JSC) and recommended the appointment of five new judges namely Adv Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha.
Adv Phoofolo and Justice Mahase were accused of making the recommendations without informing Law and Justice Minister Prof Mahao who is also the deputy leader of the ABC.
ABC secretary general Lebohang Hlaele subsequently confirmed to the Lesotho Times that the party’s NEC had indeed recommended the ouster of Adv Phoofolo and Justice Mahase.
Mr Hlaele said the NEC’s recommendation for their ouster was purely on the grounds of “competency issues” and nothing else.
He said they felt that 73-year-old Adv Phoofolo was no longer up to the task due to ill-health, a charge rejected by the latter who argued in his court papers that he was still of “sound mind”.
It remains to be seen if Adv Phoofolo’s Monday court victory will bring finality to the issue.
He said although he had won the court case, he was aware of the government’s alleged plans to impeach him over a host of issues including alleged incompetence and abuse of office.
Some government sources last week told this publication that Adv Phoofolo has been accused by the government of abusing his position by unprocedurally recruiting a female friend without following proper recruitment processes.
The sources said the government threatened to impeach Adv Phoofolo if he did not withdraw the High Court application challenging Dr Majoro’s decision to send him on terminal leave on 14 September 2020.
They said the threat was made by Prof Mahao during the latter’s 29 October 2020 meeting with Adv Phoofolo’s lawyer, Adv Letuka Molati, to discuss an out of court settlement with him. The settlement would enable Adv Phoofolo to withdraw his application challenging the terminal leave and pave way for the government to start searching for his replacement, the sources said.
It is said that despite threats of impeachment, Adv Phoofolo refused to withdraw his court application.
The sources said to demonstrate that it means business, the government subsequently withdrew the soldiers who have been guarding Adv Phoofolo in his capacity as a very important person (VIP). The soldiers were withdrawn on 2 November 2020.
Government Secretary, Lerotholi Pheko, subsequently confirmed the withdrawal of the soldiers. He however, said they were withdrawn because Adv Phoofolo was not entitled to such security. He said it had only been given to him during the tenure of the previous Thomas Thabane administration when he felt threatened by unnamed people who were not happy with his legal opinions.
Prof Mahao denied threatening to impeach Adv Phoofolo.
He however, confirmed that the two parties met to discuss Adv Phoofolo’s concerns over Dr Majoro’s decision to send him on terminal leave pending the expiry of his contract in February next year.
He however, unwittingly let slip that government wanted Adv Phoofolo to abandon his case, warning that the latter would one day rue his decision to disregard government’s call for him to abandon the case.
“He can go ahead with the case. If the negotiations do not yield a solution to this problem, he can go ahead with the case. You know the Sesotho proverb that lipele li na le baji (meaning: one will live to regret to their decisions). He will be sorry that he- a lawyer- refused a generous deal from government. He will live to regret it,” Prof Mahao said last week.
Yesterday, Adv Phoofolo said although he had won the case, he still expected the government to proceed with its plans to impeach him. He however, said he was prepared for that eventuality.
“I am currently on leave which expires mid-December. After that I will determine my next move. However, I cannot ignore the threat of impeachment. I am now enjoying my leave but still expecting the government to impeach me because I did not withdraw the case,” Adv Phoofolo said.
