Yet another blow for Mosito

 Rapelang Mosae

MASERU

THE Constitutional Court could have cleared the way for the impeachment of Court of Appeal President Justice Kananelo Mosito after it dismissed his application on Monday.

The court ruled that Prime Minister Pakalitha Mosisili did not violate the constitution when he advised King Letsie III to appoint a tribunal to enquire into his fitness to hold office.

It also ruled that Mosisili had observed the rules of natural justice and fairness when he afforded Justice Mosito a chance to make representations why the King should not be advised to appoint a tribunal to enquire into his fitness to hold office.

The Constitutional Court ruling is yet another devastating blow for Justice Mositoin his bid to stay in office. Justice Mosito was appointed President of the Court of Appeal in January 2015 by King Letsie III on the advice of former premier Thomas Thabane who was to lose a general election a month later.

Justice Mosito had taken his matter to the Constitutional Court arguing that a judge could only be suspended or removed from office for acts of misconduct which occurred during the judge’s tenure of office and not before he was appointed.

But the Constitutional Court found that the misbehaviour referred to in section 125 of the Constitution, which requires suspension and investigation of a judge who misbehaves “is not limited to conduct which occurred when the judge is in office”.

“It includes conduct of a judge prior to being appointed to judicial office,” the judgment reads.

The court also found that Mosisilihad observed the rules of natural justice and the requirements of fairness when he afforded Justice Mositoan opportunity to make representations why the King should not be advised to appoint a tribunal to inquire into his fitness to hold office and why he should not be suspended pending the enquiry.

“The Prime Minister’s decisions to advise the King to appoint the tribunal, and to advise the King to suspend (Justice Mosito), was neither irrational nor unlawful, and therefore do not fall to be reviewed,” the judgment reads.

“In order for the public to have respect and confidence in the judiciary, it is imperative that the conduct of judges, both in their private affairs and in the discharge of their public functions should manifest integrity,” it reads.

“It is therefore in the interest of both (Justice Mosito) and the judiciary in Lesotho that the allegations of impropriety on the part of (Justice Mosito) should be fully and transparently investigated by an independent tribunal.”

The court referred to Mosisili’s letter dated February 12, 2016 that “it is untenable that while (Justice Mosito) is under investigation, he should continue in office and exercise its functions”.

The judges held that the allegations of tax violations although they took place before Justice Mosito was appointed a judge, could well constitute misbehavior for the purpose of the section in question.

The judgement says the counsel for Justice Mosito, Advocate Thoahlane, had argued there was no statutory provision for prospective judges in Lesotho to disclose during an interview any past misdemeanours.

Justice Magkoka says he find that distinction “superfluous and the submission sought to be drawn from it, quite unfortunate, especially when made on behalf of a judge who holds high judicial office”.

“It is incumbent on anyone aspiring for judicial office, without prompting, to disclose any relevant information which could potentially embarrass them and the office they are appointed to.

“In my view, it is beneath judicial office for an aspirant judge to withhold such information on the basis that the law did not oblige him or her to disclose it,” he said.

“The office of judge requires integrity and probity, which should impel disclosure, even where the law does not require it.”

The court however reserved comment on whether Justice Mosito should have disclosed his tax violations, indicating that such would be decided by the tribunal.

Justice Mosito had urgently approached the court seeking it to review the decision of the Prime Minister to advise King Letsie III to appoint a tribunal to inquire into allegations of misconduct accruing from his failure to file tax returns on time.

His own court, the Court of Appeal, had already ruled that he could be investigated when the Constitutional Court delivered this judgement on the constitutionality of his investigation.

Also the Constitutional Court had on December 15, 2015 dismissed an application in which he challenged Mosisili’s notification that he would advise the King to appoint the tribunal.

The Constitutional Court judges also criticized Justice Mosito’s decision to conduct an “independent probe” which showed that some judges and lawyers had also not filed their tax returns in time.

Mosisili wrote him saying he had violated tax laws by tampering with the secrecy between the taxman and taxpayers when he investigated tax accounts of judges and lawyers.

The court said Justice Mosito’s decision to cite other judges “had resulted in a deleterious relationship between the applicant and his fellow judges”.

It said if there are tensions between the President and one or more of judges of the court “that could seriously hamper the administration of justice”.

The judges said the indictment of Justice Mosito and his appearance in court as an accused on criminal charges “would result in the corrosion of public confidence in the judiciary were the applicant to remain in office while the criminal proceedings and the enquiry by the tribunal are pending”.

JusticeMosito was first charged with failure to submit his income tax returns for the periods of 1996 to 2014.

On October 8, 2015 the Prime Minister informed Justice Mosito of his intention to ask the King to appoint a tribunal to investigate his removal from office.

This led toa series of challenges by JusticeMosito.

However the decision to dismiss this constitutional matter now leaves the door open for a tribunal of three retired South African judges Brand JA (chairperson), Hurt JA and Foxcroft J, to resume its mandate and decide his fate.

The case was before Judges TM Makgoka AJ, N Kollapen AJ and W Hughes.

Justice Mosito was represented by Advocates R Thoahlane and MRasekoai, whereas the government was represented by Gerhard Penzhorn SC and Roland Suhr.