Judgment reserved in Mosito case
The high Court on Tuesday reservedd judgment in a case in which suspended Court ourt of Appeal President Justice Kananelo Mosito wants judges’ impeachment law reviewed.ed.
Justice Mosito on 28 January 2016 filed a constitutional case in a fresh bid to blockck impeachment proceedings against him.
This was after Prime Minister Pakalithaalitha Mosisili asked him to show cause whyhy he should not request the King to appointt a tribunal to inquire into allegations of tax evasion levelled against him by the Directoror of Public Prosecutions (DPP).
Dr Mosito is accused of failing to pay tax for his law firm between 1996 andnd 2014. he was appointed Court of Appeal al President in January 2015.
In his application, Dr Mosito wantss the court to rule that a judge could only be impeached for offenses committed while he or she was in office and not before occupying the post.
however, a panel of three judges from m South Africa — Justices Tati Moffat Makgoka, Narandran Kollapen and Wendyndy hughes — on Tuesday reserved judgmentment in the case.
It was after Dr Mosito’s lawyers urged ed the court to rule in their favour, while lawyersawyers representing the Attorney General, Prime Minister and Judicial Service Commission, ission, as respondents, asked the court to dismissismiss the application.
The fourth respondent is the Law Society of Lesotho, but it did not participate in the proceedings.
Addressing the court on Tuesday, Advocate Ranale Thoahlane insisted the law should be interpreted to mean a judge could only be impeached for misconduct he or she committed when he or she had been appointed judge.
“It is our view that the Prime Minister, at the time of appointing a judge, has taken all relevant issues into consideration before appointing a judge.
“We submit that what should happen is once appointed, a judge cannot be questioned about what happened in the past,” Advocate Thoahlane said.
But Justice Makgoka interjected and asked: “But what if the judge is convicted on something that happened before his incumbency?”
In response, Advocate Thoahlane said whether the judge should be removed from office or not should then depend on the gravity of the offense.
“If the conviction is of such a nature that it cannot be reconciled with the office of the president, he can be r removed. “But what happenedhappene before he was a judge is not what is envisag envisaged by section 125 of the Constitution,” he said.said Section 125 of the constitution gives the Prime Minister the po powers to advice the King to establish a tribunaltribuna to investigate a judge for impeachment purp purposes. Advocate MonahengMonahen Rasekoai, who also represented Dr Mosito,Mosito said the Prime Minister’s decision to suspe suspend Dr Mosito should be reviewed and set asideasi because he was not given reasons for the move. however, theth lawyer representing the Attorney G General and Prime Minister, Senior Counsel Guido Penzhorn, said failure by the Prime Minister t to give reasons for the suspensionsuspensio did not make the decision illegal.ille “This i is particularly so because the applicant did not deny the allegationsalleg levelled against him,” he said. The lawyerla representing the JSC, King’sK Counsel Motiea Teele s said the matter should be referredre to the tribunal that has already been establishedtabl to investigate Dr M Mosito for possible impeachment.peac however,ho Justice Makgoka reserved judgment to a ad date to be announced in dued course. In his notice of motion before the court, Justice Mosito wants “a declaratory that upon the proper construction of Section 125 of the constitution of Lesotho, judges are subject to suspension and/or removal only for reasons of incapacity or misbehavior that renders them unfit to discharge their duties and which conduct or omission must have occurred during the judge’s occupancy”. The notice continues: “A tribunal contemplated in terms of Section 125 can only be appointed to investigate conduct or misbehav- iour and/or inability to perform functions of the judge’s office which arose during the occupancy of the judge’s office.”
Section 125 (3) and (4) of the Lesotho Constitution being referred to, reads: “An appointed judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehavior and shall not be so removed except in accordance with the provisions of this section.
It is our view that the Prime Minister, at the time of appointing a judge, has taken all relevant issues into consideration before appointing a judge. We submit that what should happen is once appointed, a judge cannot be questioned about what happened in the past
“An appointed judge shall be removed from office by the King if the question of his removal has been referred by the King to a tribunal appointed under Subsection (5) and the tribunal has advised the King that the appointed judge ought to be removed from office for inability as aforesaid or for misbehavior.”
In his affidavit, Justice Mosito gave a background that led to his application.
“The present application is of monumental importance regarding the tenure of office of judges of the Superior Courts (high Court and Court of Appeal) in the Kingdom of Lesotho.
“It is aimed at ensuring the independence of the judiciary and its insolation from interference by the executive, hence the need to cite the respondents in this application,” he stated. Continued on Page 9 . . .
Suspended Court of Appeal president Justice Kananelo Mosito.