As fresh elections in Lesotho seem increasingly likely because of splits in the ruling party, a last minute settlement means the judicial disputes that have shocked the legal world over the last month are, at least for now, off the table. The settlement came shortly after new details emerged of barbed correspondence between the President of the Court of Appeal, the Acting Chief Justice and the Prime Minister, Thomas Thabane. The correspondence formed part of the founding affidavit in papers filed by the law society of Lesotho in litigation aimed at preventing the appeal court president's suspension. It is widely believed that Thabane wants to get rid of the appeal court president, formerly a judicial favourite of his, because the Prime Minister no longer perceives the judge to be on his side in the ruling party's continuing leadership struggle.
The ongoing crisis in Lesotho's judiciary, involving internal tensions as well as problems between the judiciary and the country's political leadership, has been taken off the boil - at least for now. This follows a last-minute settlement of several high-profile cases that, had they continued, would have destroyed all semblance of judicial independence and were set to create a constitutional crisis.
A key element in the story is Lesotho’s prime minister, Thomas Thabane, who personally drove the reinstatement of Court of Appeal president, Kananelo Mosito, after the judge was fired for misconduct at the end of 2016. Now, in a massive about-turn, he wants to get rid of Judge Mosito.
A few weeks ago, Thabane wrote to Judge Mosito giving him seven days to provide reasons why he should not be suspended pending an inquiry into his conduct.
Like Judge Mosito’s first appointment, his first dismissal and his reinstatement two years ago, the latest move has been all about politics. This time it was sparked by a leadership crisis in Thabane’s All Basotho Convention (ABC) which has left Thabane’s own position under serious threat and now threatens to send the entire country back to the polls just two years since the last elections.
Insiders say Thabane had been certain that Judge Mosito was on his side after the PM ensured the jurist’s comeback, but recent decisions by the appeal court, going against the Thabane faction in the ABC, have left Thabane with a different view. Once again ignoring judicial independence, Thabane now sees it as a political necessity to remove Judge Mosito.
The unseemly war of words began with a letter written by acting Chief Justice ’Maseforo Mahase, complaining about decisions by Judge Mosito that had undermined her authority. Soon afterwards, Thabane wrote to Judge Mosito repeating some of the ACJ’s complaints. He said these issues had the ‘potential to bring the administration of justice into disrepute’, and that, as head of government, it was his duty to ‘come to the rescue and preserve the reputation of the judiciary’.
He gave Mosito seven days to provide reasons why he should not be suspended from office pending an investigation.
That letter sparked action by the law society, with an after-hours application seeking to interdict Thabane from recommending the suspension of Mosito to King Letsie III. Almost as controversially, the law society also wanted to interdict the ACJ from ‘allocating’ any case or exercising any ‘case management function’. When she continued with this administrative function, however, an urgent case was launched claiming she should be found in contempt of court.
The law society's application, initially to have been argued on July 28, included attachments that disclosed the disturbing tone of correspondence between the chief players.
The society said it was shocked to the marrow to read Thabane’s letter to Judge Mosito. The PM was interfering with the independence of the judiciary. Suppporting the re-appointment of Judge Mosito in August 2017, Thabane had been ‘singing loudest the praise songs’ about him. It was thus ‘indeed surprising’ that barely two years later, he was ‘bent towards the impeachment’ of Judge Mosito. But it was not hard to find a reason, said the law society: the court of appeal had given decisions that went against the PM’s faction within the ABC and similar cases were still on the roll.
The society said the planned suspension of Judge Mosito would ‘spiral the judiciary further into an abyss of sociological illegitimacy’.
The correspondence between the ACJ, Judge Mosito and Thabane, attached to the application, is highly barbed and sarcastic in places.
In her initial letter the ACJ asked whether Judge Mosito could say, ‘with all honesty’ that the appeal court had been ‘upholding the Rule of Law and working towards access to quality justice for all’. Replying, Judge Mosito pointed out that she had wrongly addressed him as ‘Judge President’ instead of ‘The President of the Court of Appeal’. He said he ‘suspected’ this was ‘a result of inadvertence, for the two titles are not the same thing’.
She in turn, ‘profusely’ apologized, assured him she would not ‘inadvertently’ make such a mistake again and thanked him for having answered her letter despite her mistake.
Later, the PM wrote again to Judge Mosito (also wrongly referring to him as ‘Judge President’) questioning why he was still lecturing at the University of Lesotho. Thabane said when he advised that Judge Mosito should be appointed it was ‘on the understanding and expectation’ that he would not hold any other ‘public office’ in Lesotho.
However, he had not left his job at the university, despite a ‘reasonable likelihood’ that his continued employment might ‘compromise (his) independence’. ‘I do not have to remind you that, as a Judicial Officer, you should place the whole of your time at the disposal of His Majesty’s service.’
Thabane thus ‘invited’ the judge to ‘regularise’ his position and immediately end his employment relationship with the university, adding, ‘I expect to receive your confirmation of such termination within … seven days.’
Replying, Judge Mosito said he had never had discussions that could have created the ‘understanding and expectation’ that he would not hold other office. He ‘respectfully’ pointed out that it was to be expected that, as head of government, Thabane would be aware that there is no such ‘post’ as the President of the Court of Appeal in the Public Service of Lesotho, only a ‘position’. ‘As Your Excellency is aware, the position of the President of the Court of Appeal is an unsalaried position.’ All that court’s judges, including the president, were paid only ‘sitting allowances’ and were not salaried.
If the government were to establish a ‘post’ for the president of the appeal court, he was ‘more than prepared, as early as today’, to stop working at the university and have his pension benefits transferred into the special pension fund as required by law.
In a separate letter to the Attorney General, copied to the ACJ and to the law society, Mosito said he and the ACJ had meanwhile met and sorted out their differences and put their misunderstandings behind him.
Referring to himself throughout in the third person, Mosito said in the letter to the AG that ‘the President’ questioned the AG about the ‘legal propriety’ of correspondence from the PM: both the PM and the ACJ ‘appear to have started a culture of writing letters of complaint to the President’ on issues relating to the judicial work of the appeal court.
It was ‘vitally important’ that the AG should advise the PM to stop overstepping the boundaries. ‘Failure to advise the Executive to stop this apparent interference with the judicial work of the courts is a recipe for a constitutional crisis ....'
However, in a bid to prevent all these matters from proceeding in court, representatives of the parties met late this week and agreed to 'settle' the disputes. The initial contentious letters were withdrawn and the other matters were recorded as being 'amicably settled'. While, for the moment at least, there is a truce, the problem of Lesotho's political leaders attempting to undermine judicial independence is far from over.