End of the road for Mosito

Staff Reporter

MASERU

“Judges are human. They can commit crimes, and if they do they can be prosecuted. They can also behave in ways proving them unfit for judicial office. Then they may be removed from office.”

That was the damning assessment of five judges of the Court of Appeal last Friday while dismissing an appeal by suspended Court of Appeal President Justice Kananelo Mosito.

Justice Mosito was challenging the Director of Public Prosecutions Leaba Thetsane KC’s decision to bring charges against him as a sitting judge instead of waiting for a tribunal appointed by the King to find whether he is still fit to hold the position of judge.

The court ruled that Prime Minister Pakalitha Mosisili was within his power when he initiated the removal procedure contained in Section 125 of the Constitution.

Justice Mosito is facing a litany of 19 counts in a criminal court where it is alleged that he did not file his tax returns on time between 1992 and 2014.

The crown says Justice Mosito committed the crimes while he was running his law firm, KEM Chambers.

The judges of the Court of Appeal found that Justice Mosito’s founding affidavit defended the judiciary “against attack by the executive” but at the same time “the pitch and marrow of his case was and is that he is being personally persecuted”.

“In reality he has not been vindicating the independence of the judiciary . . . but has been pursuing personal interests under the banner of constitutionality,” the judges said.

The judges said Justice Mosito’s appointment as President of the Court of Appeal in January 2015 “was contentious from the outset, both politically and professionally”.

He was appointed during a political window preceding a general election by former Prime Minister Thomas Thabane “who was soon to lose office as Prime Minister to a bitter opponent”, Pakalitha Mosisili.

“The incoming Prime Minister (Mosisili) made plain that he thoroughly disapproved of the substance and timing of the appointment,” the judgement reads.

“Professionally the nomination was contentious as (Justice Mosito)’s elevation to such high judicial office straight from the ranks of the bar was seen as arguably swift,” it reads.

The court observed that Justice Mosito’s tenure as the President of the Court of Appeal was stormy, with many attempts to remove him which triggered a litany of applications and counter applications in the High Court, the Constitutional Court and the Court of Appeal.

There were five separate applications involving an impressive array of opponents ranging from the Prime Minister, the Attorney General and Justice Mosito’s colleagues on the bench and at the bar to the Director of Public Prosecutions and the Lesotho Revenue Authority’s Commissioner-General.

“But, notwithstanding this ostensibly wide-ranging and tangled skein of litigation, on closer examination the issues on appeal before us fall within a narrow ambit and are quite clearly defined,” the judgement reads.

The court narrowed down the plethora of cases to the principal challenge by Justice Mosito – that “the institution of criminal proceedings against a sitting judge is unconstitutional”.

The court said the essence of Justice Mosito’s argument was that by reason of the separation of powers enshrined in the Constitution of Lesotho, “errant judges must be dealt with under the dismissal procedure contained in section 125 of the Constitution and not in criminal courts”.

Section 125 of the Constitution provides that if a judge misbehaves the King should appoint a tribunal that will investigate his qualification as a judge and advise the King as to whether such a judge should be relieved of his duties or not.

“But in our view the argument advanced on behalf of (Justice Mosito) is fundamentally misdirected,” the judgement reads.

“There is no suggestion in section 125 of the Constitution, however broadly interpreted, to support the truly startling proposition that the removal mechanism of section 125 overrides or qualifies the prosecutorial power of the Director of Public Prosecutions,” it reads.

The court said the constitution gives the DPP “power in any case in which he considers it desirable…to institute and undertake criminal proceedings against any person before any court…in respect of any offence”.

“There is nothing in the wording or context of section 125 to suggest that members of the judiciary in Lesotho are ex officio shielded from prosecution, that a judge is not “any person” within the meaning of section 99(2)(a), that judges are not included in this strikingly widely designated category,” it reads.

“On the contrary, such a construction would not fly in the face of section 99 but would be in conflict with the rule of law and the constitution’s explicit principle of equality before the law enshrined in section 19” of the constitution.

The court said the reasoning espoused by Justice Mosito“smacks of elitism and privilege, sentiments at variance with universally accepted judicial ethics”.

It said judges “are not princes; they are servants”.

The court said although it is important to protect the judiciary against any impairment of its untrammelled independence to ensure that judges are immune from the executive or legislative influence and adequately funded to do so, “that is not the issue here”.

“This case does not relate to the judiciary as an institution. (Justice Mosito)’s case has throughout been that he is the target of a malicious ad hominem assault – the prosecution and the section 125 proceedings are aimed at him personally,” the court said.

“The case does not even relate to his exercise of judicial powers or performance of judicial functions,” it said.

“There is no suggestion here that there was any attempt to influence, hamper or impede (Justice Mosito as a) judge.”

The court said this is a case about a taxpayer who happens to be a judge who allegedly failed to file income tax returns.

“The question here is whether a person, by virtue of his or her appointment as a judge, is shielded from the prescripts of the income tax legislation and ordinary criminal law and procedure of the land,” it said.

The court said if a judge is facing criminal prosecution, it may be argued “that judicial ethics might require that a judge stand down voluntarily or be suspended pending the outcome of the criminal case”.

The judges said while Mosito’s lawyers had argued it would be undesirable to have a judge under indictment on a serious charge sitting on the Bench, the “solution does not lie in the quasi-immunity contended for”.

“The man in the street is presumed innocent until proven guilty; a judge’s probity must be above suspicion,” the judgement said.

“Consequently, a judge accused of conduct seriously impairing his or her integrity, though nothing has yet been proved, may have to step down voluntarily or be suspended in order to preserve the image of the judiciary.”

The judges said they had “considered each of the points advanced in support of the appeal and found each wanting”.

Justice Mosito was represented by Advocates Monaheng Rasekoai, N Pheko and C J Lephuthing while the DPP and the Attorney General were represented by Adv G H Penzhorn and Adv R A Suhr.