MASERU – Directorate on Corruption and Economic Offences (DCEO) Director General, Advocate Mahlomola Manyokole should go and answer charges leveled against him before a tribunal investigating his fitness to hold office, the court has said.
This follows the High Court dismissal of an application to have the tribunal nullified. Justice Moroke Mokhesi yesterday dismissed Manyokole’s court bid for lack of merit and substance. The judge disagreed with all Manyokole’s grounds to have the tribunal nullified.
However, Justice Mokhesi nullified Manyokole’s suspension which was effected while the case was still pending before court, saying the matter was sub judice for the suspension to have been issued.
The anti-corruption boss had approached the court in December last year following Prime Minister (PM) Moeketsi Majoro’s appointment of a tribunal tasked with investigating his (Manyokole) fitness to hold office. He had asked the court to nullify a legal notice appointing the tribunal and that the decision by the Chief Justice (CJ) to select Judge Teboho Moiloa as a member and chairperson of the tribunal canceled.
Majoro appointed the tribunal in December 18, 2020, hardly a day after he was served with a ‘Show cause’ letter on why he may not be suspended from office.
In the letter, a litany of complaints were levelled against Manyokole, such as irregularly and illegally staging a litigation and filing an affidavit as well as citing the anti-corruption body as a litigant for own personal matters. In doing so, government said Manyokole compromised the institutional and functional autonomy of DECO and acted contrary to the law
Further, Manyokole was accused of neglecting and failing to develop and implement a sound management system within the DCEO so as “to maximize the efficiency of the investigative mandate of the anti-corruption body”.
He also stands accused of corruption and incompetence. Law and Justice Minister, Professor Nqosa Mahao in December 2020 said Manyokole failed to manage the affairs of DCEO well and “with the requisite diligence and professional aptitude.”
In a letter he (Mahao) authored on behalf of government, the law minister said “You unilaterally endeavored to withdraw criminal charges staged against one former Minister of Finance – ‘Mamphono Khaketla – without the concurrence and or consultation with the office of Director of Public Prosecutions and as a result arrogated to your esteemed office the powers which you do not enjoy. As a result, you brought both the office of Director General of the institution you lead and the office of the Director of Public Prosecutions into disrepute.
At the same time, the tribunal was also appointed. According to the legal notice, the tribunal will investigate and determine the question of removing Manyokole as well as making recommendations to Prime Minister Majoro as to whether or not the Director General ought to be removed from office.
Retired judge, Justice Teboho Moiloa, has been appointed as chairman and will sit with Justice Semapo Peete (also Retired) as well as Justice Polo Banyane. However, Manyokole argued that the tribunal is illegally constituted and that the legal notice establishing the tribunal is not only unintelligible, vague and overboard.
In his court papers, Manyokole revealed that that Justice Moiloa is investigated by DCEO and, therefore, argued that he cannot chair the tribunal. He said the decision to appoint Moiloa as chairperson is irrational.
On top of that, he argued that the fact that the tribunal to investigate him was established without affording him a hearing constitutes to a violation of independence and autonomy of the institution.
Justice Mokhesi dismissed all the allegations. In his judgement, he explains that the terms of the legal notice Manyokole claims to be overboard are clear.
“The terms of the legal notice are clear; it is to make an investigation into whether Mr Manyokole should be removed. The fact that it is not mentioned in the legal notice whether what is to be investigated is his incapacity occasioned by infirmly of body or mind or any other cause prohibiting him from discharging his function or misconduct, does not take the matter any further,” reads the judgement in part.
It goes further state that the legal notice constitutes the tribunal and cloaks it with jurisdiction to make an inquiry on the questions referred to it.
Justice Mokhesi also found no evidence to the effect that autonomy or independence of the institution was under threat when the director general was asked to ‘Show cause’ why he may not be suspended without first being heard. He said he remains unpersuaded that indeed the institution is undermined.
The judge continued: “The minister responsible for the DCEO is not empowered to remove the DG himself, the Prime Minister and Minister of Law and Justice are following the procedure laid in the Corruption Act which is aimed at ensuring that the independence and autonomy of the DCEO is not eroded, by entrusting an inquiry into the fitness of the 1st Applicant (Manyokole) to hold office to a panel of judges who may find nothing wrong with his probity to hold such office. I am unpersuaded that the independence of the DCEO is being undermined in this case.”
On the alleged irrational selection of judge Moiloa, as the chairperson, Justice Mokhesi dismissed the same saying the investigation by DCEO does not disqualify him from determining the head’s fitness to hold fitness.
“The CJ could not have reasonably been expected to have known what was happening within the DCEO regarding the affairs of the learned judge. In fact, it is not the applicant’s case that the CJ was well aware of the investigations. To paint the CJ’s decision with irrationality in the circumstances of this case is problematic.”
The judge further stated “I do not understand how the investigation by the institution is now made an issue personal to its head such as to disqualify a judge from determining the head’s fitness to hold office…”