President of the Court of Appeal Justice Kananelo Mosito
Lekhetho Ntsukunyane
Suspended Court of Appeal president, Kananelo Mosito, has suffered another blow after the Constitutional Court dismissed his application to block impeachment proceedings against him.
The ruling, which was delivered on Friday last week, comes a month after the Court of Appeal upheld a High Court ruling to have Justice Mosito prosecuted for alleged tax evasion, which Prime Minister Pakalitha Mosisili had used to convene a tribunal for his possible impeachment.
In his application filed before the Constitutional Court in February this year, Justice Mosito wanted the court to rule a judge could only be impeached for offenses committed while he or she was in office and not before occupying the post.
Justice Mosito also sought an order that a tribunal contemplated in Section 125 of the country’s constitution was “only competent to investigate misbehavior which allegedly arose during the judge’s tenure of office”.
He further sought the court to “review and set aside as unconstitutional, the Prime Minister’s decision to advise the King to appoint the tribunal and suspend him from his duties”.
Justice Mosito also sought a permanent interdict against Dr Mosisili “from ever making a request to the King for the appointment of a tribunal to enquire into his removal from office on the grounds the Prime Minister had used to advise the King”.
But a panel of three judges from South Africa, namely TM Makgoka, N Kollapen and W Hughes, ruled against Justice Mosito, citing, among others, that “the misbehaviour referred to in Section 125 is not limited to conduct which occurred when the judge is in office. It includes the conduct of a judge prior to being appointed to judicial office.”
Dr Mosito was indicted on 21 August 2015 for allegedly violating tax regulations by failing to submit his income tax returns on time between 1996 and 2014 while practicing as an advocate.
On 31 August 2015, Justice Mosito appeared in court as summoned, but obtained an interim order staying the criminal prosecution pending the determination of his case in which he challenged the constitutionality of the trial.
But on 8 October 2015 Dr Mosisili wrote to Justice Mosito informing him that he had become aware of the allegations levelled against him.
Because of the allegations, the Prime Minister said, he was considering whether to represent to the King that the question of his removal from office be investigated in terms of Section 125(5) of the Constitution.
The Prime Minister accordingly invited Dr Mosito to make written representations why he should not proceed to advise the King as he was contemplating.
But Justice Mosito, court documents show, did not respond to Dr Mosisili’s letter.
Handing down the ruling last Friday, the judges noted Dr Mosisili observed the rules of natural justice and requirements of fairness by affording Justice Mosito an opportunity to make representations why King Letsie III should not be advised to appoint the tribunal to enquire into his fitness to hold office, “and why he should not be suspended pending the enquiry by the tribunal”.
The judges noted: “The Prime Minister’s decision to advise the King to appoint the tribunal, and to advise the King to suspend the applicant, was neither irrational nor unlawful, and therefore do not fall to be reviewed. The tribunal is competent to enquire into the applicant’s fitness to hold office based on the alleged tax evasion and whether the applicant’s conduct in disclosing the tax affairs of his colleagues had the effect on his ability to discharge the duties of his (tax affairs).”
The judges also indicated in order for the public to have respect and confidence in the judiciary, it was imperative that the conduct of judges, “both in their private affairs and in discharge of their public functions, should manifest absolute integrity. “It is therefore in the interest of both the applicant and the judiciary in Lesotho that the allegations of impropriety on the part of the applicant should be fully and transparently investigated by an independent tribunal.”
The judges also observed that Dr Mosisili stated to Justice Mosito in a letter dated 12 February 2016 “that it is untenable that while the applicant is under investigation, he should continue in office and exercise his functions. I (we) agree. It is particularly so because the applicant is also facing criminal charges. It would not redound to the credit of the judiciary for the applicant to remain in office pending the outcome of the enquiry by the tribunal. The sum total of the above is that the application must fail.”
The ruling paves way for the tribunal investigating Justice Mosito to resume at a local hotel after the probe had been halted pending the outcome of the Constitutional Court case.
Advocate Monaheng Rasekoai, who represented Justice Mosito in the matter, yesterday told the Lesotho Times the impeachment tribunal would now continue with the inquiry following last week’s ruling.
