FIVE judges of Lesotho’s highest court have laid it on the line for no less a person than the head of that same court: not even an exalted judicial position shields you from facing prosecution or an impeachment tribunal, they say.

Their keenly awaited decision effectively clears the way for both the prosecution of criminal charges and for an impeachment hearing, scheduled for early August, against the president of that country’s court of appeal, Judge Kananelo Everitt Mosito.

The charges arise from allegations that Mosito has not submitted tax returns for nearly 20 years dating back to 1996. Since the indictment against him was first issued in 2015, Mosito has brought number of applications trying to stave off action against him that now, following the appeal court decision, seems inevitable.

Five South African jurists sat as acting judges of appeal in the matter. The decision was written by no less a figure than Justice Johann Kriegler, a member of the South African Constitutional Court from the time of its inception in 1994, a highly respected judge with an international reputation, now retired from the bench in South Africa.
Kriegler, a master of understatement, begins the decision by commenting that it is an “unusual judgment in an unusual case”, and that it concerns a matter involving the president of Lesotho’s court of appeal “personally”.

Mosito’s appointment was politically and professionally contentious from the outset, Kriegler explains. It was made in the last moments of an administration about to lose office in a general election to a “bitter opponent”. Since then the new government had made it plain that it “thoroughly disapproved” of the appointment. Mosito’s appointment was questioned at a professional level as well since he was elevated to the apex of the judiciary from the ranks of academia and the bar without real judicial experience.

The judgment discusses the various attempts by Mosito to challenge the pending prosecution and the pending impeachment hearings. He has consistently characterised both as a “malicious stratagem” by the executive aimed at his dismissal – and therefore as a matter crucial to the rule of law and judicial independence.

As part of his strategy to fight off the criminal charges Mosito tried to show he was being unfairly singled out, alleging that other judges and top advocates, though also not tax complaint, were not facing similar prosecution.

In one of his applications he demanded disclosure of the tax data of all the other judges in Lesotho as well as tax information relating to a number of legal practitioners, identifying them by their income tax numbers. These practitioners reacted strongly to being named and brought into his dispute, and they obtained a court order that he would join them in his application. This would have allowed them to defend themselves in the matter. Despite the court order, however, Mosito has never done so.
When the prime minister formally invited Mosito to show cause why “dismissal proceedings” should not be instituted against him, Mosito responded with further litigation.

Mosito’s main case has been that it is unconstitutional to bring criminal proceedings against a sitting judge – this is because in his view judges must be disciplined, in the first instance, by way of the impeachment provisions in the constitution, and not via criminal prosecution.

The high court found against him on this point and the issue then went to the appeal court where it has now been resolved by Kriegler and his colleagues. They found, essentially, that the two processes may advance side by side and that there is no constitutional bar to criminal prosecution of a judge. There was no suggestion in the constitution for what the appeal judges terms the “truly startling proposition”, argued on behalf of Mosito, that the impeachment mechanism overrides the prosecutorial powers of the director of public prosecutions.

Nor was there anything in the wording of the constested constitutional clause to suggest that that members of the judiciary in Lesotho were “shielded from prosecution” by virtue of their office. Such a construction would conflict with among others, the Rule of Law, and the constitution’s explicit principle of equality before the law. Moreover, they said, such an interpretation of the section “smacks of elitism and privilege, sentiments at variance with universally accepted judicial ethics.”
“Judges occupy high office and are due respect and governmental support in the exercise of their onerous duties, but they are not princes; they are servants.”
While it was important to protect the judiciary against infringements of independence, that was not the issue here, they said. This was not a case about the judiciary as an institution and Mosito’s case all along had been that he had been the target of a “malicious ad hominem assault” and that the prosecution and disciplinary proceedings were aimed at him, personally.

There was no suggestion that there was any attempt to influence or hamper him as a judge. “This is a case about a taxpayer who happens to be a judge who allegedly failed to file income tax returns. Put differently – and more correctly – 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.”

Along the way Mosito had dropped various aspects of his original argument, and was mostly left with a claim, based on the constitution, that the proposed action against him violated the principle of judicial independence. The five judges said they knew of no principle that would have the effect of immunising judges from criminal prosecution. They wanted to be “emphatic” on this point: if there was any difference between judges and anyone else facing criminal prosecution it could be argued that “in a case affecting probity” judicial ethics would require a judge to stand down voluntarily or submit to suspension pending the outcome of the case.

Counsel for Mosito argued that the disciplinary proceedings outlined in the constitution were a “necessary precursor” to prosecution. That could not be, said the judges, as it would mean that the judgment of a disciplinary tribunal overrode that of the criminal justice system.

The judges also said that they did not in any case endorse the submission by Mosito that disclosure by the revenue authorities to their prosecution colleagues was improper. The tax law prohibition was on “unauthorised” disclosure, they said, and there was nothing wrong with the tax authorities giving information to the prosecuting arm of the state for action against alleged tax offenders.

The court also pointed out that on the one hand Mosito claimed an impeachment process could not start until the criminal prosecution was complete. And on the other he contended that prosecution could not start until the disciplinary process was complete, a position that resulted in deadlock. “This patently absurd conclusion is also derived from the failure to distinguish the two distinct mechanisms …. 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. Conduct constituting an indictable crime can also constitute impeachable misconduct.”

On the question of costs the court said while Mosito tried to present his case as a defence of the judiciary in Lesotho against attack by the executive, he also made out that he was being personally persecuted. In reality he was not defending judicial independence “but has been pursuing his personal interests under the banner of constitutionality”. It was therefore appropriate that he should bear the costs of the other parties in the case.

The decision means the disciplinary hearing may now go ahead in August as planned. However, Mosito has already tried to limit its terms of reference via a recently argued application for the subject matter of the hearing to be restricted: he wants anything that happened before his appointment as a judge to be off limits. Judgment in that matter is still expected, but it is unlikely that his argument will have persuaded the court.

This story first appeared in Legalbriefs, 25 May 2016

Mosito v Director, Public Prosecutions