FOREIGN JUDGES ON LESOTHO BENCH SLAM POLITICAL INTERFERENCE IN JUDICIAL APPOINTMENTS

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...