‘Local judges are compromised’
MASERU – Prime Minister Thomas Thabane wants foreign judges to preside over a matter in which the Law Society of Lesotho is trying to stop him from suspending President of the Appeal Court, Dr Kananelo Mosito.
This is after High Court Justice Thamsanqa Nomncongo last Thursday interdicted Thabane from suspending Justice Mosito.
Government lawyers yesterday pointed to comments made by presiding judge Justice Nomncongo during the hearing as grounds for his disqualification from presiding over the case as he appeared to have already prejudged the case.
Thabane now wants Justice Nomncongo, along with two other judges (Justices Moroke Mokhesi and Keketso Moahloli) who were allocated the case, to recuse themselves, paving the way for yet-to-be appointed foreign judges to hear the case.
In a recusal application filed yesterday Attorney General (AG), Haae Phoofolo said the three judges have sat with Justice Mosito in other matters and are likely to be compromised and biased in dealing with the case affecting Justice Mosito.
Phoofolo said the fact that the presiding judges or any other High Court judges are colleagues with Acting Chief Justice who has also been cited as a party to the proceedings, is a good ground for their recusal.
Further, he stated that all High Court judges are likely to be compromised to decide either for the Prime Minister or the Law Society on the “likelihood of bias arising either due to the likelihood of upward mobility or because of how small and close the Lesotho High Court bench is.”
In an affidavit filed together with the application for recusal, the government’s legal advisor said the fact that High Court judges are colleagues of Justice Mahase and that Justice Mosito is their senior disqualifies them from hearing the application.
He said: “There is a reasonable apprehension that they will as a result fall into the trench of being biased towards the Acting Chief Justice or against her or because of having sat in the court of appeal have affinity towards that court and the president.”
Phoofolo said the Prime Minister was last Thursday interdicted without being addressed on the interim prayers and argued that by granting the orders, Justice Nomncongo was unfair to the government.
Justice Nomncongo is reported to have made comments that he is tired of impeachments and suspensions and just went ahead to grant the interdicts.
In his affidavit, Phoofolo said: “Upon counsel for the applicants stating the history and what is involved, the learned judge who was not ready to hear the parties suddenly said: I am tired of impeachments/suspension proceedings morning and evening, I will interdict. The honorable judge seemed to be exasperated that there is another attempt at suspension or impeachment.
“He was upset by this. At this time, he said he had still not read the file. He said this also opening the file to grant interim orders sought despite having not read the file or head my counsel.
“It was at this juncture that Advocate Thoahlane stopped the judge, informing him that the respondents have not been heard on the interim prayers and that the prayers are being opposed rigorously and the judge cannot grant them without reading the file and hearing opposition.
“My counsel informed the court that we are opposing the application on several grounds which he is ready to go into but regard being had to what His Lordship had already said concerning time and the funeral then the matter should be postponed to Monday for hearing on the interim prayers.
“Be that as it may, counsel for the applicant were not happy that there would be no order staying the hand of the 1st respondent in the meantime. Regard being had to the attitude to the honorable judge to grant the interim order without our counsel being heard, our counsel suggested that they undertake not to have further letters being written until the hearing and ruling on the interim prayers on Monday.”
Phoofolo said his lawyer even requested that he be allowed to make a call concerning the decision to grant the interim prayers but was not given the indulgence to which he reacted that he was undertaking that until Monday there would be no letters written and delivered pending hearing on the interim prayers but a preservation order was nonetheless granted.
He argued that Justice Nomncongo’s comments, readiness and willingness to grant the interim order showed that he had already made up his mind about the reliefs sought yet a full bench was yet to decide the interim prayers.
“His views are clear that despite the fact that he had not heard arguments on the granting or not granting of the interim orders. I aver that the judge will be biased and his comments and readiness is indicative of bias as was shown prior to full arguments on the issue.”
On top of that Phoofolo said: “I am also apprehensive that the ends of justice will not be served owing to the influence borne by the annoyance of the judge by the issue of impeachment or suspension as he has already negatively influenced his mind.”
According to Phoofolo, Justice Nonmcongo and all other High Court judges should therefore recuse themselves from the case because Justice Mahase is the Acting Chief Justice and a colleague to all judges who form part of the small bench.
“The 2nd respondent has been sued in their jurisdiction. On this, there is reasonable ground for the other legal official or judges to be recused from trying the proceedings on the reasonable apprehension or likelihood of bias.”
Justice Mosito and Thabane have been at loggerheads with the latter threatening the former with suspension.
Thabane on August 14 requested Mosito to “show cause” why he should not be suspended “to preserve the (integrity of) administration of justice as a whole”.
He took issue with Mosito’s continued employment relationship with the National University of Lesotho (NUL), “whilst you remain the President of the Court of Appeal”.
He asked Mosito to make representations on why he should not be suspended pending establishment of a tribunal to investigate allegations of misconduct levelled against him.
“It appears that you continue to be employed with the National University of Lesotho because you find the emoluments attached to the position of the President of the Court of Appeal to be insufficient.
“As you put it, all judges of the Court of Appeal (the President included) get sitting allowances only per sitting. I find this excuse not to be valid,” Thabane wrote.
“I was appalled to read and learn from your letter that you consider yourself not to hold a public office in the government of Lesotho.
“In other words, you do not consider yourself to be in public office in the Government of Lesotho. In other words, you do not consider yourself to be in the public service.”
Thabane said when Mosito accepted his appointment as President of the Court of Appeal, he was aware of the emoluments attached to that office.
“It is concerning that because of the insufficiency of the emoluments attached to your office as the President of the Court of Appeal, you are prepared to compromise such office and engage in other functions that are inconsistent with perceived impartially and neutrality of a judge,” he wrote.
According to the Prime Minister, Mosito’s employment relationship with the NUL might compromise his independence, impartiality, integrity and competency as a judicial officer.
“I therefore intend to advise His Majesty the King to appoint a tribunal in terms of section 125(5) of the constitution to investigate the aforesaid misconduct and your fitness to hold office.
“In my view, your continued employment relationship with the National University of Lesotho whilst you remain the President of the Court of Appeal constitutes a misconduct that compromises your independence, impartiality, integrity and competency as a judicial officer. I therefore intend to advise His Majesty the King to suspend you from office in terms of section 125 (7) of the constitution.”
Thabane first threatened Mosito with suspension to make way for an inquiry into his conduct and fitness to hold office on July 5, this year.
This was after Justice Mahase had excoriated Mosito over the Court of Appeal’s reversal of most of Mahase’s controversial judgments in the highly combustible All Basotho Convention (ABC) cases.
Thabane is leader of the ABC which is riven with infighting.
Thabane requested Mosito to defend himself on the back of Mahase’s allegations against him.
Perturbed by Thabane’s move, the Law Society launched an urgent application in the High Court seeking an interdict against the King, Thabane and Mahase.
Despite having a direct personal interest in the matter, Mahase elected to preside over the matter to the shock of the lawyers’ body which immediately appealed. The matter is pending in the Court of Appeal.
Concerned that Thabane might carry through his threat before the appeal was heard, the Law Society sought an interim interdict against Thabane pending final determination of the main appeal.
Accordingly, the Court of Appeal, on August 2, ordered that pending hearing of the main appeal, Thabane “is hereby interdicted from advising and/or recommending to His Majesty the King, the suspension of the President of the Court of Appeal, Dr Kananelo Mosito”.
The King was also interdicted and restrained from suspending or establishing a tribunal to enquire into Mosito’s competency.
Justice Mosito’s troubles started after Justice Mahase accused him of flouting court rules as well as issuing orders that interfere with the administrative powers of her office as Chief Justice.
Thabane then wrote to Justice Mosito asking him to show cause why he may not be suspended.
“It has come to my attention that following circumstances over your watch as the President of the Appeal Court which have the potential to bring the administration of justice into disrepute namely that in her letter dated 27 May 1019, the Acting Chief Justice noted that you have on two court sessions entertained appeals without leave of High Court where such leave was necessary, you issued orders which interfere with the administrative powers of the Chief Justice, you made an order in the recent case of the ABC Vs Lehana and others that the matter be heard by a different judge despite the same matter being part heard in the High Court….”
“You are hereby directed to show cause why I may not recommend that you be suspended to from your office, in terms of section 125 (7) of the Constitution of Lesotho, on the basis of the above aforementioned pending investigations to be made on your competency as the President and justice of the Appeal.”
Thabane said he had decided to “come to the rescue and preserve the reputation of the judiciary” following the country’s two top judges’ spat.
The Law Society insists the President of the Appeal Court may only be removed from office for inability to perform the functions of his office or for misbehaviour.
It is adamant that the direction by the Prime Minister to the President of the Court of Appeal as well as his intended recommendation that Dr Mosito be suspended was irregular and unconstitutional.
Justice Mahase was cited in the July application but heard the matter nonetheless and postponed the case saying she was yet to seek legal advice.
She ordered then: “This is a constitutional matter and so three judges should sit, currently, the court is on vacation and judges are hardly attending court; my main concern is that currently there are hardly any judges in attendance at court because it is on vacation. The matter is accordingly stood down until 18/ 07/ 2019. I have to also get legal advice from the Attorney General.”
Aggrieved by ACJ’s decision to preside over the case, the Law Society appealed her decision and successfully interdicted Thabane from suspending Mosito on the basis of his July 5 letter to Mosito.
“Pending the hearing of the appeal …. the 1s respondent (Thabane) is hereby interdicted from advising and/or recommending to His Majesty the King, the suspension of the President of the Court of Appeal, Dr Kananelo Mosito pursuant to the 1st respondent letter dated 5 July 2019,” the Appeal Court ordered.
The court also interdicted and restrained Thabane from suspending and establishing a tribunal intended to enquire and investigate Mosito.
In the latest application, the lawyers’ body has also asked the court to declare issuance of the Thabane’s August 14 letter in violation of the sub judice principle and therefore irregular and in violation of the rule of law.
Justices: Nomncongo, Mokhesi and Moahloli yesterday directed the Lawyers to file their opposing papers on the recusal application by September 1, both parties to have their heads of arguments filed by September 13th so that the application is heard on September 24.