Dispute between top judges and political leaders in Lesotho hots up

25 July 2019 · Carmel Rickard

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.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.