Top lawyers take on Mosito

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NUL Dean of the Faculty of Law Dr Kananelo Mosito
Dr Kananelo Mosito

Fight between five of Lesotho’s senior lawyers and Court of Appeal president escalates  

Lekhetho Ntsukunyane

FIVE senior lawyers locked in a bitter feud with Advocate Kananelo Mosito over his appointment as Court of Appeal President, have written a scathing letter in response to the former’s equally damning correspondence issued last week.

The lawyers — Salemane Phafane, Motiea Teele, Karabo Mohau, Zwelakhe Mda (all King’s Counsel) and Attorney Qhalehang Letsika — are accusing Justice Mosito of “using the weight of your office” to bring internal matters of the Judicial Service Commission (JSC) into the public domain, and politicising them through his communiqué.

In the letter dated 14 April 2015 and addressed to JSC Secretary and Registrar of the Court of Appeal and High Court, Lesitsi Mokeke, Justice Mosito criticised Attorney General (AG) Tšokolo Makhethe for “ill-advising” the Commission, which he believed led to the rejection of the four judges he had proposed to hear cases in the 2015 first session of the Court of Appeal scheduled for 20 April to 5 May.

Justice Mosito was responding to a letter Advocate Mokeke had written on 10 April 2015 informing  him about the JSC’s rejection of the judges, leading to the indefinite postponement of the session which was supposed to hear 38 cases.

In the letter — which was also copied to Chief Justice Nthomeng Majara, Minister of Justice Vincent Malebo, Private Secretary to His Majesty Mabotse Lerotholi, Advocate Makhethe, Director of Public Prosecutions (DPP) Leaba Thetsane, President of the Law Society Shale Shale and “all legal practitioners” — Justice Mosito related how he had fallen out with the AG, and why he believed this to be the reason the JSC turned down his proposal.

Dr Mosito noted before his appointment and swearing-in on 15 January and 27 January 2015 respectively, “there were five legal practitioners who had issued a statement that they were opposed to my appointment and yet they did not give me a copy of the said letter”.

“They also did not bother to speak to me about the issue for reasons best known to themselves. They were, however, determined to oppose my appointment at all costs. Apparently, upon realising that they had no locus standi to challenge the appointment, they then involved the Attorney General in the matter,” Justice Mosito noted.

“Apparently, when all attempts had failed for the five lawyers to shoot down the appointment, the Attorney General emerged and allegedly wrote a letter to the Prime Minister on the eve of the swearing-in, in which he was requesting the latter to discuss the matter with him.

“Subsequently, the Attorney General (Mr Makhethe) filed a constitutional motion in which he sought to have the appointment nullified. This attempt failed. It is not beyond suspicion that Mr Makhethe did this to pursue the agenda of the five lawyers who apparently did not have the necessary locus standi to challenge both the appointment and swearing-in. This was so after the Law Society had pronounced itself that as far as it was concerned, there was nothing illegal or unconstitutional about the appointment.”

He further said Advocate Makhethe then “purported to play the role of the Law Society by arrogating upon himself the function of protecting the administration of justice and legal profession. These two functions are clearly in law not the functions of the Attorney General but those of the Law Society.”

But the five lawyers have reacted angrily to Justice Mosito’s correspondence, and in a letter dated 17 April 2015, do not mince their words in expressing their fury.

The letter, endorsed by all the five lawyers, was also copied to Chief Justice Majara, Justice Minister Malebo, His Majesty’s Private Secretary Lerotholi, Advocate Makhethe, DPP Thetsane, Law Society President Shale and ‘all legal practitioners’.

The letter reads: “Kindly refer to the above-referenced matter and your letter dated 14 April 2015 copied inter alia to the Law Society and all legal practitioners. By necessary implication, the letter has been copied to us, as we are legal practitioners and also members of the Law Society. The difference, however, is that in your letter, you refer to what you have variously termed ‘five lawyers’, ‘the five’ and the Attorney General and ‘his friends’.

“The reference to the five therefore, in the context of what you then say about the said lawyers, leaves no doubt that you are referring to the five of us, authors of this letter. The choice of your language sadly resembles the description that was given to us by some radio stations aligned to known political parties which created talk-shows about the issues of your appointment, and were of a view that we were wrong to have expressed our dissent.

“Under normal circumstances, we would not respond to a letter written to another and copied to us. But the circumstances prevailing in this case are far from normal as we shall demonstrate. Consequently, we had no choice but to write to you. The first thing that strikes us as unprecedented and abnormal is that you have involved us and others to whom you have copied your letter in a matter that is purely and strictly the internal management of the Judicial Service Commission and its interaction with your office.

“The JSC is a creature of the Constitution and its membership is fully set out therein. It is a matter of great regret that in your letter, you find it unfortunate that the Attorney General is a member of the JSC. A judge of the Court of Appeal, a President of that matter, has no authority to condemn as unfortunate the structure set out in the Constitution, which such a judge is tasked to uphold.

“The examination of the whole of Part Six of the Constitution under which the JSC has been established and constituted, shows that there is nowhere where the President of the Court of Appeal is given power to disparage the work of the JSC, let alone do so publicly the way you have done.”

The JSC, the lawyers noted, had its own procedures and “regarding who should not participate in any particular discussion is a matter within the competence of the JSC and not the President of the Court of Appeal”.

The lawyers further noted it was difficult to understand why in his letter, Justice Mosito “decided to launch an attack against the Attorney General when the decision is that of the JSC”.

The letter continued: “It remains unclear why the President of the Court of Appeal should seek to regulate, by remote control, who should and should not recuse himself at any sitting of the JSC. Even more confounding is your suggestion that the Attorney General had an interest that disqualified him from participating in deliberations concerning the appointment of Justices of the Court of Appeal.

“This, as we can gather from your letter, is because the Attorney General, aided by his lawyers (who are part of what you have sarcastically called five lawyers) had opposed your appointment in and out of court. The Attorney General could not possibly have been conflicted on that account. The appointments under consideration, were of people other than yourself. We personally do not know the candidates, but you have not cited any reason why the Attorney General could be biased against any of them; or, in the JSC that decides on the bias of a majority, why the other members were biased against the candidates.

“The difficulty, with respect to you, is that you have perceived the appointment of the Justices of the Court of Appeal as your personal project. We are fortified in this view by your assertion that when you were officially advised by the Registrar of  lack of funding, you used your own personal funds to travel across the SADC (Southern African Development Community) region hunting for judges. This again explains the intemperate and unmitigated tone of the language you have used in your letter.

“We want to suggest to you, with the greatest respect, that your letter, improperly copied to the outside world in respect of an internal matter, is a truly disguised attempt to intimidate the JSC, and if the weight of your office would prove insufficient, then you have made this matter public so that it is made a subject of the court of public opinion – that is called politics.

“The Constitution provides in Section 132 (8) that ‘in the exercise of its functions under the Constitution, the Commission shall not be subject to the directive and control of any other person or authority’. This is an injunction that the President of the Court of Appeal should respect.

“It is common knowledge none of the people you have sent copies of your letter has any constitutional or statutory role in the appointment of Judges of Appeal, except His Majesty only after the JSC has given its advice for a permanent appointment.  It remains a mystery why they have been sent copies of your letter.”

Concerning the postponement of the Court of Appeal session, the lawyers noted: “As far as the postponement of the Session of the Court of Appeal is concerned, that could be communicated without an attack on the JSC which you have undertaken. Might we bring to your attention that in terms of Section 124 (2) of the Constitution, the President of the Court of Appeal is entitled only to be consulted by the JSC before it advises His Majesty to appoint the Justices of Appeal.

“In terms of Section 155 (8) of the Constitution, the JSC is not bound by your advice nor could this be made a subject of any court-action. It is clear in terms of the Constitution that the recruiting authority is the JSC. We are confounded where you had the power to ask that the Chief Justice convened the JSC and recommended the appointment to the JSC and then become irate when your preferred candidates are not appointed.”

The lawyers further argued the President of the Court of Appeal is not a recruiting authority “and the fact that you spent your own money to undertake the recruitment of judges, which is not your function, raises more questions than answers regarding your interest and the lawfulness of your actions. A whole thesis can be written on the impropriety of what you have done here but to cut a long story short, we are concerned that the following are also implicated in this matter:

“You have decided to single us out for attack whilst we are not even members of the JSC and have no role in it directly or indirectly. It is clear that in the circumstances, we can never get justice before your court for as long as you remain President of the Court of Appeal. You appear to have a problem with the fact that the Attorney General has instituted a case challenging your appointment. We would have thought that a judge in your position would welcome challenges that are made through the courts of law rather than politically. Given your attitude, what guarantee do we have that you will be an impartial and independent judge?

“It is unprecedented that whereas you are aware that an appeal has been noted against the decision where you are a party in the matter of the Attorney General, you publicly criticise the Appellant (Attorney General) about the same matter. What is worse is this appeal is pending and your appointment has no relevance to the recruitment of Judges of Appeal. What sort of justice should we hope to receive in your court?

“Again in your letter, you refer to what you say happened ‘for the first time in the history of humankind in Lesotho that the Attorney General could bring proceedings against His Majesty in his government. This created a lot of public outcry as virtually everybody was aware that the Attorney General has misconceived his remedy’.

“That is a classical political statement which you appear to endorse. The fact surrounding ‘hands off our King campaign’ and those who sponsored it politically is not a secret. It is remarkable that you, as President of the Court of Appeal, are making common cause with it. But it is not that strange in as much as the said political campaign benefited your cause because it was a campaign aimed at ensuring that your appointment was not challenged in a court of law. You still appear unhappy that this challenge went ahead irrespective.

“But it is inexcusable, with respect, that you should be endorsing the sentiments of that campaign when your Counsel, Mr Jeremey Gauntlett SC, conceded during the hearing of the challenge to your appointment, that His Majesty may indeed be sued in his official capacity and that the issue was indeed not before the court as it was not raised by you in your papers.

“It is then difficult to understand how our actions are political and egotistical when yours do not appear to attract the same description from yourself. Those of us, including the Attorney General, did nothing wrong in arguing the matter in the court to deserve the insult that you hurl at us. We refuse to be intimidated by you using the weight of your office but we have reason to doubt whether you will indeed be impartial and independent as a judge.

“Whether the Registrar said there was money or not is an internal matter and your unfair conclusion that he is involved in some conspiracy is a mystery. The presence of a sum of money without the full details of the budget tells us nothing.

“Regarding your own appointment, which we said is totally irrelevant to the work of the JSC, you say that the Law Society saw nothing wrong with it. Well, we contend that they are wrong and in any event, we are not bound by their opinion.

“Finally, you make the point that we did not approach you about your appointment; it is strange that you should accuse us of this. You know fully that we did not know who approached you to become the President of the Court of Appeal; his/her reasons; when he did so; who was privy to that; your discussion with such a person or anything for that matter connected with your appointment.

“You did not tell anyone, including the Law Society Council which initially denied the rumour that you were going to be sworn-in. You speak of lack of moral authority on the part of the Attorney General when he institutes litigation, an ideal you are supposed to uphold, yet you say nothing of the fact that your appointment was a closely-guarded secret. The rhetorical question is why did you not mention this when your appointment was made at the time and in circumstances of constitutional instability and crises then prevailing in the country, when the government was but a one-man show?

Our humble and respectful view is that you have misconceived your role in the recruitment of judges and you have acted inappropriately in politisising the issue. We ask you to dig deep in your conscience and reconsider whether you should remain in office.”

Meanwhile, the Law Society has since invited its members to a meeting scheduled for Maseru today, to discuss this matter, among other issues.

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