The ongoing drama involving open conflict between political and judicial leaders in Lesotho continued this week and there is no sign that anyone is about to relent. Three potentially explosive challenges have been brought to court over the last few days, one of them a late-night urgent application. Two are for appeal while one is to be heard in the high court. All of them involve the judiciary probing highly sensitive political and judicial issues and raise questions of judicial independence. And in the meantime, a court of appeal judgment that has now been reported, throws more light on the dispute between Lesotho’s beleaguered Prime Minister, Tom Thabane, and the president of the court of appeal, Kanenelo Mosito.
Read the judgment
The story so far. Lesotho’s Prime Minister Tom Thabane has served notice on Court of Appeal President, Kanenelo Mosito, saying he should give reasons why he should not be suspended pending an inquiry into whether he should be impeached.
In that notice, Thabane quoted from a letter by acting Chief Justice ’Maseforo Mahase to Judge Mosito complaining, among others, about steps he had taken that she claimed undermined the office of the CJ.
This week, the law society of Lesotho brought an urgent after-hours application to stop Judge Mosito’s planned suspension, naming Thabane, the ACJ, King Letsie III and the Attorney General as respondents. One of their complaints was that in a matter cited by Thabane to justify Judge Mosito’s pending suspension, the ACJ should not have presided. As a named respondent, she was a litigant in the case, said the law society and should therefore not have been a ‘judge in her own cause’. After the initial after-hours flurry, the matter has been set down for argument on 28 July.
Then, earlier today, new and potentially explosive litigation was launched when the group within the ruling – but deeply divided – All Basotho Convention, in opposition to Thabane, noted an appeal against an earlier judgment by the ACJ. This particular judgment is seen by the ABC grouping pitted against Thabane as favouring the Prime Minister.
The third court action was brought on behalf of Lesotho’s former defence minister, Tseliso Mokhosi, part of a group of 16 accused of which he is part. They face a slew of serious charges including murder, attempted murder and conspiracy. The 16 had objected to the foreign judges due to hear their case and other controversial, politically-charged matters. They say the foreign judges were appointed by the Judicial Service Commission in a way that led the 16 to conclude the judges were specially selected by the executive to achieve a particular result. They feared the judges would not be impartial, that the trial would not be fair, and that the ultimate intention was to ensure the death penalty was passed.
A full bench of the high court heard the challenge to the constitutionality of the foreign judges’ appointment, but in their May decision they rejected Mokhosi’s claim as ‘scurrilous’ and ‘deplorable’.
Now the government attorneys have written to the court of appeal, saying they want the appeal of the accused to be argued urgently. Last week the registrar of the court of appeal wrote, agreeing to the request, saying the reasons given for requiring an urgent enrollment were ‘unquestionable’. Judge Mosito had set 18 July for Mokhosi’s heads of argument to be filed, July 19 for heads on behalf of the foreign judges, the Prime Minister and others, with the matter to be heard on 22 July.
According to other lawyers involved, however, the letter on behalf of Mokhosi motivating the ‘urgency’ of an appeal, was not copied to the other side, so they did not know an urgent appeal had been motivated. They said the dates set for submitting heads of argument and for the appeal, are impossible to meet on such short notice.
While speculation grows in Lesotho legal circles that this appeal too is politically motivated, pitting the Prime Minister against the court of appeal and its president, another judgment has been reported that could explain some of the animosity between Judge Mosito and the PM.
This judgment, delivered during the appeal court’s last session, was heard by five judges, four foreign judges who have contracts to serve on the appeal court – and Judge Mosito.
Their decision, severely critical of the ACJ, noted that the disputes within the ruling ABC had the potential to destabilise – or had done so already – not only the party, but also the coalition government and the ‘general governance’ of Lesotho.
Thanks to an interim decision by the ACJ, the ‘old’ executive of the party was running the party at the time of the appeal, and the appeal judges said it was a ‘very regrettable state of affairs’ that the urgent matter before her had still not been heard.
Elsewhere they referred to her not giving reasons for her ‘drastic order’ and that it still ‘remains unknown’ why she decided as she did. And they said that the views she expressed at one point in her order gave the impression that she had already prejudged an issue involved in the case. Writing for a unanimous court, Judge Moses Chinhengo (Zimbabwe and Botswana) said, ‘I must observe, and this is a matter of some concern, that the ACJ did not have her facts correct’, and then went on to spell out how he arrived at this conclusion. Judge Mosito added a separate, concurring decision in the matter.
It is this decision that the ACJ found to be usurping the authority of her office and it lay behind one of her complaints to Judge Mosito, then repeated by Thabane in his notice to Judge Mosito of a pending suspension.
According to legal and political observers in Lesotho, this judgment was seen by Thabane as evidence that Judge Mosito could not be relied on to provide support to Thabane’s faction in the ABC, and for this reason his suspension was essential.