Court reserves judgment in Mosito case
The High Court on Tuesday reserved judgment in a case in which suspended Court of Appeal President Justice Kananelo Mosito wants judges’ impeachment law reviewed.
Justice Mosito on 28 January 2016 filed a constitutional case in a fresh bid to block impeachment proceedings against him.
This was after Prime Minister Pakalitha Mosisili asked him to show cause why he should not request the King to appoint a tribunal to inquire into allegations of tax evasion levelled against him by the Director of Public Prosecutions (DPP).
Dr Mosito is accused of failing to pay tax for his law firm between 1996 and 2014. He was appointed Court of Appeal President in January 2015.
In his application, Dr Mosito wants the court to rule that a judge could only be impeached for offenses committed while he or she was in office and not before occupying the post.
However, a panel of three judges from South Africa— Justices Tati Moffat Makgoka, Narandran Kollapen and Wendy Hughes—on Tuesday reserved judgment in the case.
It was after Dr Mosito’s lawyers urged the court to rule in their favour, while lawyers representing the Attorney General, Prime Minister and Judicial Service Commission, as respondents, asked the court to dismiss the application.
The fourth respondent is the Law Society of Lesotho, but it did not participate in the proceedings.
Addressing the court on Tuesday, Advocate Ranale Thoahlane insisted the law should be interpreted to mean a judge could only be impeached for misconduct he or she committed when he or she had been appointed judge.
“It is our view that the Prime Minister, at the time of appointing a judge, has taken all relevant issues into consideration before appointing a judge.
“We submit that what should happen is once appointed, a judge cannot be questioned about what happened in the past,” Advocate Thoahlane said.
But Justice Makgoka interjected and asked: “But what if the judge is convicted on something that happened before his incumbency?”
In response, Advocate Thoahlane said whether the judge should be removed from office or not should then depend on the gravity of the offense.
“If the conviction is of such a nature that it cannot be reconciled with the office of the president, he can be removed.
“But what happened before he was a judge is not what is envisaged by section 125 of the Constitution,” he said.
Section 125 of the constitution gives the Prime Minister the powers to advice the King to establish a tribunal to investigate a judge for impeachment purposes.
Advocate Monaheng Rasekoai, who also represented Dr Mosito, said the Prime Minister’s decision to suspend Dr Mosito should be reviewed and set aside because he was not given reasons for the move.
However, the lawyer representing the Attorney General and Prime Minister, Senior Counsel Guido Penzhorn, said failure by the Prime Minister to give reasons for the suspension did not make the decision illegal.
“This is particularly so because the applicant did not deny the allegations levelled against him,” he said.
The lawyer representing the JSC, King’s Counsel Motiea Teele said the matter should be referred to the tribunal that has already been established to investigate Dr Mosito for possible impeachment.
However, Justice Makgoka reserved judgment to a date to be announced in due course.
In his notice of motion before the court, Justice Mosito wants “a declaratory that upon the proper construction of Section 125 of the constitution of Lesotho, judges are subject to suspension and/or removal only for reasons of incapacity or misbehavior that renders them unfit to discharge their duties and which conduct or omission must have occurred during the judge’s occupancy”.
The notice continues: “A tribunal contemplated in terms of Section 125 can only be appointed to investigate conduct or misbehaviour and/or inability to perform functions of the judge’s office which arose during the occupancy of the judge’s office.”
Section 125 (3) and (4) of the Lesotho Constitution being referred to, reads: “An appointed judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehavior and shall not be so removed except in accordance with the provisions of this section.
“An appointed judge shall be removed from office by the King if the question of his removal has been referred by the King to a tribunal appointed under Subsection (5) and the tribunal has advised the King that the appointed judge ought to be removed from office for inability as aforesaid or for misbehavior.”
In his affidavit, Justice Mosito gave a background that led to his application.
“The present application is of monumental importance regarding the tenure of office of judges of the Superior Courts (High Court and Court of Appeal) in the Kingdom of Lesotho.
“It is aimed at ensuring the independence of the judiciary and its insolation from interference by the executive, hence the need to cite the respondents in this application,” he stated.
The respondents are the Attorney General, Prime Minister, Judicial Service Commission (JSC) and Law Society of Lesotho.
The judge further notes in the affidavit: “On 21 August 2015, the Director of Public Prosecutions issued an indictment against me in respect of allegations of income tax violations in CR/T/0051/2015.
“I immediately prepared a constitutional motion challenging the said prosecution.
“On 28 August 2015, I received a notice of trial which required me to appear before the High Court of Lesotho on 31 August to answer the said charges.
“On 31 August 2015, I went to court as required by the indictment and at the same time, filed a constitutional motion to stay the criminal prosecution pending final determination of the constitutional case in court.”
Justice Mosito further indicates that on 8 October, the Government Secretary handed him a letter written by Prime Minister Pakalitha Mosisili.
“It became clear that the 2nd respondent (Prime Minister) had proceeded by way of Section 125(5) of the constitution, as an afterthought, after having learnt of the constitutional nature of my complaint,” he noted.
The letter, he noted, was asking him to show cause why the premier should not request the King to appoint a tribunal to inquire into the alleged tax transgression which formed the basis of both the constitutional and criminal case.
“This honourable court ultimately determined my constitutional challenge and dismissed my application.
“Being dissatisfied with the judgment, I noted an appeal to the Court of Appeal and the appeal is due to be heard in April 2016.
“The judgement dismissing my applications was handed down on 15 December 2015 and I noted the appeal the following day with an application for stay of execution of that judgment pending appeal.
“The application for stay was heard and granted with costs by the Court of Appeal on 26 January 2016,” he noted.
Justice Mosito further said the Court of Appeal stayed the criminal proceedings until the first day of the Court of Appeal term in April this year.
“The court, however, left open the issue of the possibility of impeachment being proceeded with in respect of the 2nd impeachment, ground on which the 2nd respondent contemplated to impeach me on the basis of averments I had made in affidavits in the proceedings before this court,” he said.
Justice Mosito also notes how he believes the constitution should be interpreted regarding the removal of judges.
“The need for the determination of this issue before hand is occasioned by the fact that unlike in other jurisdictions, there is no provision in either the constitution of Lesotho, Acts of Parliament or subordinate legislation on what constitutes an impeachable offence as well as the nature of offences that should properly be considered impeachable in respect of the superior court judges,” he indicated.
According to Justice Mosito, judges should be suspended or removed from office “only for reasons of incapacity or misbehaviour that clearly renders them unfit to discharge their duties and which conduct or omission are so gross and inexcusable and that also bring the judiciary into disrepute.”