FOREIGN JUDGES ON LESOTHO BENCH SLAM POLITICAL INTERFERENCE IN JUDICIAL APPOINTMENTS

20 April 2018 · Carmel Rickard

AN EXTRAORDINARY new high court judgment from Lesotho highlights a serious problem in that country’s judicial and executive arms: every one of the last four permanent appointments to head Lesotho’s highest court has ended in scandal, with political interference playing a major role.

Of the last four permanent presidents of the court of appeal, one was appointed twice, two were the subject of impeachment tribunals and one was “summarily removed from office” in an unlawful bid to install the favourite of a new prime minister.

The latest judgment concerns senior legal academic Kananelo Mosito. He was the first jurist to be permanently appointed as president of Lesotho’s court of appeal after the resignation of the disgraced former head of that court, Michael Ramodibedi, who handed in his resignation just as his impeachment tribunal was due to start.

From the time of Mosito’s appointment in January 2015, his fortunes exactly mirror those of two rival prime ministers. Initially he was appointed by King Letsie III, on the advice of prime minister Tom Thabane, just before national elections. The move was controversial from the start as the parties had made a pre-election pledge that no significant new appointment would be made before the polls. After Thabane lost the elections to his opponent, Pakalitha Mosisili, unsuccessful attempts were made to challenge Mosito’s accession on legal grounds. By year-end, however, Mosito was faced with another challenge when he was indicted for trial on grounds that he failed to submit income tax returns for almost 20 years.

Early in 2016, a tribunal of three SA judges was appointed by the king, on the advice of the new prime minister, Mosisili, to investigate Mosito’s fitness for office. The judges signed their tribunal report on 9 December 2016, advising that Mosito ought to be removed from office on the basis of misconduct. A copy of the report was sent to Mosito’s legal representatives on 13 December. On that same day, Mosito wrote a formal letter of resignation to the king, in which he argued that since he had resigned it would be “legally pointless” to impeach him and remove him from office.

Despite Mosito’s letter, however, the king, acting on Mosisili’s advice, published a notice in the government gazette that Mosito had been removed from office both as head of the highest court and “altogether as a judge”, with immediate effect.

The following year, with Mosito gone from judicial office and with his trial on alleged tax law violations continuing, a new head of the appeal court was gazetted by the king, again on the advice of Mosisili: retired SA appeal court judge Robert Nugent was to take office as of 22 May 2017. Then came snap elections in which Mosisili was voted out and Thabane, 78, once again returned to power as prime minister.

Hardly three months after Nugent formally took office as head of the court of appeal, he was “summarily removed” from office – no reasons given – by a notice in the government gazette. By a second notice in the gazette, Mosito was again appointed to head the appeal court, this despite his previous impeachment under the previous political regime.

Some months later, four of Lesotho’s senior legal practitioners were before the high court, challenging Mosito’s re-appointment and the summary dismissal of Nugent. Ironically, the country’s law society was also a party to the case, but on the other side, claiming that Mosito’s re-appointment was lawful.

In a crucial preliminary ruling the three judges hearing the case found that the applicants had legal standing to test Mosito’s re-appointment. This was because they had a duty to ensure the country’s constitution and other laws were upheld and that those appointed to administer justice met the required standards. On the role of the law society, the judges said there had been no formal meeting of members before the society’s weight was thrown behind Mosito. In doing so the law society “materially misrepresented its members”.

The judges also dealt with an unverified claim by Mosito’s lawyers that the tax charges against him had been withdrawn by a court order, and that a second court order was granted to “nullify the findings and decisions” of the tribunal that impeached Mosito. The judges said they could find no record of these two court orders on the papers filed in the case and they disregarded the claims that they existed.

In his testimony before the impeachment tribunal, Mosito had admitted some of the charges against him, but had added that he was not the only one to have broken the law in this way. Yet his answering affidavit in the high court challenge to his re-appointment claimed that the tax charges were trumped up and “orchestrated by his political adversaries”. “A witness is not allowed to somersault,” said the court.

While prime minister Thabane also claimed the charges were trumped up, the judges noted that Thabane had not testified at the tribunal in support of these allegations. And even if there had been improper political motives behind the charges, this did not alter the fact that Mosito had broken the law, they added.

They also criticised Mosito’s inappropriate and questionable behaviour over the period of the tribunal’s work. “The apex office of the judiciary is a very respectable office. So must be those who hold it. Their conduct should not dishonor that high office. Impeccable moral standing is a crucial hallmark of such a public office,” they added.

The judges said there had been no successful legal challenge to the tribunal’s findings, and that its findings “may not be disregarded or nullified by a private pact without recourse to a court of law on proper notice to the members of the tribunal”. Whether the tribunal’s decision was wrong, as Mosito claimed, was not for the court to decide: absent a legal challenge, the decision had to be respected. “That the tribunal found (Mosito) unfit to hold any judicial office … is an accomplished fact. By that finding we are bound. By the abortive agreement to nullify the tribunal findings, we are not.”

On Mosito’s own version of events, he resigned to pre-empt dismissal; as such his actions had “all the hallmarks of a deliberate ploy” to frustrate the law. The judges highlighted occasions on which Mosito had secretly approached the high court to prevent his impeachment, and concluded that his “alleged resignation” had no legal effect on the constitutional process and findings of the tribunal: “he was constitutionally removed from office”.

The court was critical of the political machinations behind what it found to be the unlawful removal of Nugent: “Where, as in this instance, the most senior member of the judiciary is removed from office at the whim and pleasure of the Prime Minister in direct contravention of the constitution, the dignity of the courts is impaired, their independence radically imperiled and their impartiality drastically eroded.”

“A prime minister has no constitutional power to review the findings of a tribunal duly appointed according to the constitution. We are of the view, and it is a very firm view, that (the prime minister) overstepped the mark.” As for Mosito, all the evidence indicated that he “sacrificed his independence as a judge on the altar of political expediency. That is a lamentable state of affairs.”

Their finding: “We have come to the unanimous final conclusion that (the prime minister) indeed acted unreasonably, arbitrarily and irrationally in appointing (Mosito).

The judgment is available on LesLII: https://www.lesotholii.org/ls/judgment/high-court-constitutional-divisio...

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.