Righting one of Mosisili’s injustices:
The reinstatement of Mosito as president of Court of Appeal
THE rule of thumb of good governance is that public appointments and dismissals should be done in good faith and without malice and a vendetta. Those who forget this rule often unwittingly work against their own interests. They look petty and foolish at the end.
This is the case about the concerted effort to block the appointment of Professor Kananelo Mosito as president of the Court of Appeal of Lesotho. It is the same crew which mounted an unprecedented campaign to finally remove him from the Court of Appeal in the dying days of the Mosisili regime. No strategy or tactic was spared including setting up things akin to a kangaroo court to impeach him.
So great was the venom of this gang, that even when Justice Mosito resigned, they were not happy with that. They, contrary to the law which indicates that resignation aborts the process, still insisted on the issue of a bizarre gazette dismissing him as president of the Court of Appeal. It was the usual small headedness as a result of an acute inferiority complex which drove them. Small minds could not stand to have a qualified jurist who was not dependent on patronage and a scramble for legal fees from a captured government.
This crew thought finally it had succeeded to get rid of Justice Mosito in the judicial system in Lesotho, but it had miscalculated. Justice Mosito was reinstated a week ago in a government gazette following the demise of the Mosisili regime. It was in one sense the most emphatic rebuke of the gang which included political opportunists, lawyers and some foreign judges who served in the Court of Appeal before Justice Mosito was appointed in January 2015.
But more critically, it was a rejection of the appointment of a crew of retired South African judges who were always called upon by people with vested interests in the outcome of the impeachment of Justice Mosito. Perhaps the greatest favour of all to Basotho was the broadcast of the proceedings of the Tribunal which had been assembled to impeach Justice Mosito, by PC FM. It brought to the fore that the Tribunal did not even approximate one which sought fairness and truth. It was truly a Kangaroo Court, which did not even disguise its ultimate objective of getting rid of Justice Mosito. The government side did not even have to present evidence in the normal way. The Tribunal sought evidence and prevented Justice Mosito and his lawyers from challenging such evidence.
Justice Mosito’s reinstatement is a welcome development but we have to understand the nature of the campaign to prevent him from assuming office and also the subsequent one which resulted in his removal in spite of his resignation. How did this conspiracy begin? What was driving this crew?
Ganging up against Mosito’s appointment
The conspiracy to block Justice Mosito to become the president of the Court of Appeal probably started soon after the vacancy in the office occurred. This was caused by the resignation of Justice Michael Ramodibedi who was facing several cases of impeachment ahead of criminal charges which had been spelt out in his impeachment. The public, however, only came to know about the manoeuvres in December 2014 when five lawyers wrote a well publicised statement querying the appointment of Justice Mosito as the president of the Court of Appeal. The five lawyers, namely Salemane Phafane, Motiea Teele, Karabo Mohau, Zwelakhe Mda (all King’s Counsel) and Attorney Qhalehang Letsika; issued a statement ahead of the appointment challenging Justice Mosito’s appointment. Among other things, the five lawyers argued that government could not make such a crucial decision as it would only be in power on a caretaker basis following the dissolution of parliament on 5 December 2014.
If the five lawyers had only raised the propriety or not and not the legality of appointing senior personnel when the government is in a caretaker mode, their case would have been politically understandable. The lawyers also urged Justice Mosito to decline the appointment, noting: “Accordingly, we advise our learned colleague who has been approached, to take a principled position not to accept this appointment.
“We wish to remind him that in countries such as Kenya, judges appointed in similar controversial circumstances have been forced to resign. It is a fate we do not wish to be visited upon our learned colleague.”
This was the beginning of the public spat which later went on to concretise into a two-year campaign to remove him from office. The threat that if he did not decline the appointment he may be forced to resign was clear. Theirs was not an empty threat. On the contrary, it was a promise to have him removed. The five lawyers went on to appeal to the government to stop the process of appointment of Justice Mosito.
“We appeal to the powers-that-be to avoid bringing the administration of justice into disrepute and undermining the independence of the judiciary. This is because judicial officers serve important roles in ensuring human rights are protected and that all citizens have recourse in the courts of law in the event such rights are violated.”
Other than to refer to an earlier case where Justice Mosito had represented or provided legal opinion to the prime minister, there was nothing tangible about their fear of the administration of justice being undermined. It was just a political talk which masked personal interests of some of those who challenged Justice Mosito’s appointment. Indeed, in a later statement, the five lawyers ended up conceding that theirs was not about competence but timing of the appointment. At the time of his appointment, Justice Mosito was not only an academic lawyer as Dean of the Faculty of law, but was president of the Labour Appeal Court and had been in several panels of the Court of Appeal before. He was thus eminently better qualified than any of the people who questioned his appointment.
Later, after Justice Mosito was appointed, his antagonists told a journalist that they would challenge the appointment in the court of law. They did not except to the extent that all but one of those emerged as legal representatives of Attorney-General Tšokolo Makhethe when he attempted to have the appointment nullified.
With intimidation having failed, the next stage was two pronged. First was the sudden resignation of five South African judges in the Court of Appeal. These were Justice Douglas Scott, Justice Craig Howie, Justice Wilfred Thring, Justice Roger Cleaver and Justice Ian Farlam. Whether that was in protest over Justice Scott who had been acting as president of the Court of Appeal was not confirmed, or whether that was an attempt to cripple the court, is not relevant. The critical point is that the mass resignation had a demonstrative effect to the populace and also the legal fraternity. The spectre of a collapsing judicial system was powerful. It was a shameful thing to do for judges who had participated and enforced the awful apartheid state laws in South Africa. Justice Mosito’s appointment, even if they objected to it, did not approximate the wrongs of the system they enforced over decades in South Africa.
The mass resignations from the Court were exacerbated by the apparent reluctance of the Judicial Services Commission to fill the vacancies. Even after the president of the court had taken the initiative to identify suitable candidates, the Judicial Services Commission declined to make appointments. That had the unfortunate result of destabilising the court. Only in October 2015 were cases on appeal held with one session having been cancelled. Only the outcry by the broader public forced the hand of the Judicial Services Commission to act.
A fascinating development is that after Justice Mosito was removed from office after a long campaign, three of those judges who resigned in mass, re-emerged with Farlam as acting President. The others are Louw and Cleaver. It will be fascinating to see if their consciences will now lead to their second mass resignation now that Mosito has been reinstated. But even at the personal level, one wonders how they will feel after their previous disgraceful conduct. This is more pertinent since a certain Mamello Morrison, who was Mosisili’s Senior Private Secretary, went on radio a few weeks before the June 2017 elections, stating that government has its loyal judges in South Africa who would be on standby should the Lesotho judges make adverse judgements against the government. (Maburu a rona a melomo e mefubelu a standby).
The second path that was followed by Justice Mosito’s protagonists was to attempt to nullify his appointment through the courts of law. Attorney-General Makhethe launched a constitutional case on among others, that cabinet had not blessed the appointment. He lost both in the Constitutional Court and on appeal to the Court of Appeal. The interesting matter here was that the attorney-general’s legal team was composed of four of the five lawyers who had originally cried foul when they got wind that Justice Mosito was going to get the nod for the president of the Court of Appeal. Perhaps as a sideline, we later found out that one of the five lawyers who felt aggrieved had been touted as the president of the Court of Appeal. It could therefore have been a question of sour grapes for one of them.
The moral bankruptcy of both the five lawyers and the attorney-general was later to be revealed when they did not raise a finger when six weeks before the June 2017 elections, another South African judge, Robert Nugent, was appointed as President of the Court of Appeal by the outgoing government. This is a case which Attorney-General Makhethe facilitated. It was a case of all hands on deck to prevent the possibility of Justice Mosito being reappointed by the successor regime. It failed. This campaign did not stop after the legal collapse and shameful mass resignation of judges. It was carried to another level to fulfil the promise by the five lawyers who objected to Justice Mosito’s appointment to force him to resign like judges in Kenya as they said. They sought to find fault in order to disqualify him as a judge.
Mosito’s ouster and reappointment
After losing in court and also having lost out in preventing the appointment of new judges into the Court of Appeal, the anti-Mosito crew now sought to find other ways of dislodging him. The entry of Director of Public Prosecutions (DPP) Leaba Thetsane became the central pillar of the new efforts to get rid of Justice Mosito.
Advocate Thetsane now sought to have Justice Mosito charged with a delay to register and pay taxes with the Lesotho Revenue Authority (LRA). This was despite the fact that there was no complaint from the LRA. Indeed, during the impeachment process masterminded by the attorney-general, the LRA did not present any evidence against Justice Mosito. Documents from that body were accepted by the Tribunal without anybody in that organisation presenting or authenticating them. It was a bizarre process which had only one object, to get rid of Justice Mosito at all costs. But more importantly, the efforts were meant to oust him and taint him with a criminal record in order to ensure that he would not return to the bench.
It is remarkable that two senior judicial officers, the attorney-general and the DPP colluded to remove Justice Mosito from the bench. Was it as part of a common purpose with the five lawyers in December 2014 who had threatened to have Justice Mosito removed? This can’t be farfetched in view of the fact that in all the cases which both the attorney-general launched to nullify Justice Mosito’s appointment there were always those same lawyers representing his office. It is also significant that the same team represented Advocate Thetsane when he challenged his retirement late in 2014.
While Adv Makhethe facilitated the impeachment, Adv Thetsane pursued the prosecution which could only take place after the impeachment process had taken its course. All the above were achieved with specially recruited South African prosecutors and retired South African judges. Thus while a vicious panel was assembled to impeach Justice Mosito no matter what, Adv Thetsane was also assembling his South African prosecutors who would present their case to South African judges. While the former process had run its course, the latter still has not. The justice system which is run by people with personal vendettas serving a decaying regime of Mosisili had everything to fear from an eminent jurist who was not indebted to them. They hounded Justice Mosito out of office to serve personal egos and used a sycophantic South African band of prosecutors and judges to achieve their objectives. At the end, Justice Mosito had the last laugh. They will continue to lick their wounds but one of Mosisili’s worst injustices has been righted. Justice Mosito is back and lesothoanalysis heartily congratulates him.
Congratulations Professor Mosito for your worthy appointment. You endured a lot as they hounded you out, but you did not despair but continued to prosper. You go back to serve in the courts after your deserved promotion in the university to a new professorial rank. Welcome!!!
- This article was originally published on Prof Sejanamane’s blog lesothoanalysis.com His views do not necessarily reflect the views of the Lesotho Times.