Both Lesotho's top judges facing suspension

5 October 2019 · Carmel Rickard

Lesotho continues to prove itself highly unstable in relation to the judiciary and its tenure of office. More threats of suspension, inquiries related to impeachment and other disciplinary steps against top judges have been issued in Lesotho than in any other country in the region. This week, new action was launched against the Acting Chief Justice as well as against the President of the Court of Appeal (for the second time in two months this year, and following a successful impeachment process in 2016 from which he bounced back). All this while the Chief Justice continues in a state of limbo following her suspension a year ago on grounds widely suspected to relate to politics.

Controversies tied to the judiciary in Lesotho continued unabated this week. First shock was that Prime Minister Thomas Thabane renewed his attempt to have the Court of Appeal president, Kananelo Mosito, suspended pending an inquiry into his behaviour. It is Thabane's second attempt in just a few weeks, and follows shortly after the appeal court had ruled that Thabane could not again threaten Judge Mosito with suspension on the basis of a letter of complaint written by the Acting Chief Justice.

The second attempt at getting rid of Judge Mosito is based on different grounds and was launched on August 14. On that day, Thabane wrote to the judge and referred to an issue that had already been raised between the two of them: Judge Mosito’s continuing employment at the National University of Lesotho. In Thabane's original letter raising this issue, the PM expressed his concern that the jurist’s employment could cause a conflict of interest. It could compromise his ‘independence, impartiality, integrity and competence as a judicial officer’, Thabane said.

At the time, the judge wrote back pointing out that his position as president of the court of appeal was an ‘unsalaried position’. Like other appeal judges, he was paid only an allowance per sitting of the court. Judge Mosito then proposed that government establish ‘an office of emolument in the public service for the President of the Court of Appeal’. If that happened, he would quit his post at the university, he said.

In his new letter, the Prime Minister said that according to his reading of the judge’s reply, this (a salary) seemed to be the condition he imposed before he would agree to quit the university. He added that in his (the Prime Minister’s) reading of the constitution, a ‘public officer’ was anyone who held an office of emolument in the public service including a judge of the Court of Appeal. He said he was ‘appalled’ to read that Judge Mosito did not consider that he held public office. He was also ‘dismayed and embarrassed’ to discover that an employee of the university and a judge could consider himself ‘not to be in the service of the King’.

‘I have no doubt that such remarks are a sign of disrespect to both the King and the Constitution, and when coming from a judge, they of course call into question his fitness to hold office.’

Thabane said it appeared that Judge Mosito continued to be employed with the university because the pay attached to his judicial position was not enough. When the judge accepted the position he was aware of the terms and conditions. Thabane was concerned that the judge was prepared to compromise his office because of the pay, and engage in other functions ‘that are inconsistent with the perceived impartiality and neutrality’ of a judge.

In Thabane’s view, the judge's continued employment with the university was misconduct that compromised his independence. He therefore intended to advise King Letsie III to appoint a tribunal to investigate the judge’s ‘misconduct and fitness to hold office’, and to suspend him.

He gave Judge Mosito seven days to make representations on why these steps should not be taken.

In a move likely to be seen as equally politically motivated, the Acting Chief Justice was served with papers this week indicating that an urgent application would be brought to have her thrown out of office.

The applicant was Lebohang Hlaele, recently dismissed mininster of law and constitutional affairs, whose action is brought against the ACJ, the Judicial Service Commission, the Prime Minister, the Attorney General, the Law Society of Lesotho and King Letsie.

According to Hlaele's application, the ACJ breached her oath of office when she wrote to Judge Mosito complaining about the way he was handling certain matters related to cases and to administration. Because of that letter, the authorities should suspend her, investigate her behaviour and request the king to establish a tribunal.

Hlaele also wants the court to declare that the letter of complaint written by the ACJ to Judge Mosito, and the ‘substantially similar’ letter sent to the judge by the Prime Minister, amounted to ‘an act of putting the judiciary into disrepute’.

Hlaele, who is bringing the application in his own name, has been a litigant in some of the cases between two factions within Thabane’s All Basotho Convention (ABC). He is Thabane’s son-in-law, and part of the group expelled by Thabane despite the fact that Hlaele had been elected secretary-general of the ABC.

Thabane, who removed Hlaele from his post as minister of law and constitutional affairs, is said to suspect that Hlaele married his daughter ‘to get his hands on the party’. He is quoted as saying: ‘One day my daughter will regret this. I didn’t establish this party for sons-in-law who want it to be their inheritance.'

A number of the cases brought by Hlaele’s faction against Thabane’s grouping have been heard by the ACJ. Speculation in Lesotho is that Hlaele is bringing this action against the ACJ because he (and his faction) did not win the cases she heard.

Carmel Rickard

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