Judicial politics in Lesotho, highly fraught for some time, must now be the despair of the continent. For the fourth time in just a few years, a cloud hangs over a top judge of this mountain kingdom, with threats of suspension and impeachment. The latest development has been laid bare for the whole country to see, with the leaking of two letters indicating the struggle going on behind the scenes – and judicial independence, along with the Rule of Law, is very much the victim.
The judge at the centre of the latest scandal to rock the judiciary in Lesotho is no stranger to the threat of impeachment. Appeal court president, Kananelo Mosito, has already resigned once before, sending in his letter just as King Letsie III was issuing an official notice of his impeachment for gross misconduct.
Now the judge is facing a re-play. This time, however, he is being threatened with suspension and possible impeachment by the very man who came to his rescue last year, insisting that he be reinstated in office at the expense of the judge who had been confirmed in office as his replacement: retired Judge Robert Nugent of South Africa.
Insiders say that the difference this time round is the splintering of the ruling All Basotho Convention (the ABC). After the last elections saw the ABC returned as the majority party, its leader, Tom Thabane, saw to Judge Mosito’s return. But now the ABC is riven with inter-party disputes, and Thabane, apparently fearing the Judge Mosito favours another faction within the ABC, has decided he must go.
In the wake of his letter to Judge Mosito, Thabane has himself been suspended from party leadership. Thabane has denied both that he has been suspended and that those who claim to have suspended him had the power to do so. What the result of this particular inter-party dispute will be on his efforts to remove Judge Mosito, however, it is still too early to say, particularly since Thabane seems likely to face a vote of confidence in parliament some time soon, and the probable result is very much in dispute.
Lesotho’s judiciary was already unstable before this week’s bombshell letter by Thabane to Judge Mosito. The Chief Justice, Nthomeng Majara, has been suspended and there is an acting Chief Justice pending resolution of the government’s dispute with the CJ. The acting Chief Justice, Maseforo Mahase, made a considerable impact at a recent conference of judicial officers in Africa when she laid bare some of the extreme difficulties under which judges and magistrates have to work in Lesotho. Add to this mix the fact that magistrates in Lesotho, unhappy that government promises made as the result of a recent strike have not been kept, are again considering what action they can take to draw attention to their plight. All these and other factors clearly indicate that the judiciary in Lesotho is struggling to function, let alone maintain its own reputation or the Rule of Law.
Then came a letter by the acting CJ to Judge Mosito, listing a number of complaints against him. This letter in turn was made available to Thabane who then wrote to Judge Mosito, quoting from it and spelling out his intention to suspend the judge, pending any representations he make to the contrary.
The acting CJ’s letter to the President of the Appeal Court, dated 27 May, makes clear that she is acting officially, and contains several pages of concerns about judicial and administrative decisions made by Judge Mosito. One of these, for example, is that ‘the Court of Appeal is issuing orders which interfere with the administrative powers of the office of the Chief Justice contrary to section 12 of the High Court Act No 5 of 1978’. Another was that the appeal court had effectively ‘recused’ the acting CJ from a matter, even though no recusal application had been made to her by any of the parties. This, she says, ‘is highly unprocedural and unheard of in this jurisdiction’.
Another complaint runs like this: ‘Your Lordship, I am particularly shocked and greatly disturbed by the escalating instances where Rules of Court, including those of the highest court in the land, are being flouted with impunity by some legal practitioners, and the Court of Appeal turns a blind eye to such impunity, much to the detriment and disrepute of the smooth running of the administration of justice in this country.’
Further, she asked whether he did not feel compromised or conflicted in a matter he heard with others, in which one of the litigants was effectively his ‘boss’ or employer at the university (Judge Mosito also holds a professorial position at the National University of Lesotho).
And she concludes with this stinging question: ‘Could you say with all honesty that the Court of Appeal in Lesotho in its session of May 2019 is upholding the Rule of Law and working towards access to quality justice for all?’
Within a week, Thabane wrote to Judge Mosito, quoting from the acting CJ’s letter.
It had come to his attention, said the PM, that a number of circumstances had developed during Judge Mosito’s tenure of office. The judge would ‘surely agree’ that these concerns ‘touch on the administration of justice wherein your competency is highly anticipated and expected to be executed without doubt.’
Given the litany of complaints against Judge Mosito, the PM said he had found it ‘imperative’ as the head of government to ‘come to the rescue and preserve the reputation of the judiciary, which is likely to be eroded if not addressed in time.’
‘You are hereby directed to show cause why I may not recommend that you be suspended from your office … on the basis of the aforementioned pending investigation to be made on your competency as President and Justice of the Court of Appeal. Your response should be delivered to my office within seven days.’
While Judge Mosito considers his response, the PM is fighting for his own survival. He has dismissed his party’s announcement last weekend that he has been suspended for six years, saying he was the ‘only leader’ of the party, adding ‘The rebels must stop it because my patience is wearing thin.’
His patience with his ABC party members may indeed be wearing thin, but so is the reputation of the judiciary in his country – in large part because of exactly the political machinations that continue to threaten Thabane’s own position.
*Newsletter, Judicial Institute for Africa (Jifa), 11 July 2019