Judg­ment re­served in Mos­ito case

Lesotho Times - - News -

The re­spon­dents are the at­tor­ney Gen­eral, Prime Min­is­ter, Ju­di­cial ser­vice Com­mis­sion (JSC) and Law so­ci­ety of Le­sotho.

The judge fur­ther notes in the af­fi­davit: “On 21 au­gust 2015, the Di­rec­tor of Pub­lic Pros­e­cu­tions is­sued an in­dict­ment against me in re­spect of al­le­ga­tions of in­come tax vi­o­la­tions in CR/T/0051/2015.

“I im­me­di­ately pre­pared a con­sti­tu­tional mo­tion chal­leng­ing the said pros­e­cu­tion.

“On 28 au­gust 2015, I re­ceived a no­tice of trial which re­quired me to ap­pear be­fore the High Court of Le­sotho on 31 au­gust to an­swer the said charges.

“On 31 au­gust 2015, I went to court as re­quired by the in­dict­ment and at the same time, filed a con­sti­tu­tional mo­tion to stay the crim­i­nal pros­e­cu­tion pend­ing fi­nal de­ter­mi­na­tion of the con­sti­tu­tional case in court.”

Jus­tice Mos­ito fur­ther in­di­cates that on 8 Oc­to­ber, the Gov­ern­ment sec­re­tary handed him a let­ter writ­ten by Prime Min­is­ter Pakalitha Mo­sisili.

“It be­came clear that the 2nd re­spon­dent (Prime Min­is­ter) had pro­ceeded by way of sec­tion 125(5) of the con­sti­tu­tion, as an af­ter­thought, after hav­ing learnt of the con­sti­tu­tional na­ture of my com­plaint,” he noted.

The let­ter, he noted, was ask­ing him to show cause why the premier should not re­quest the King to ap­point a tri­bunal to in­quire into the al­leged tax trans­gres­sion which formed the ba­sis of both the con­sti­tu­tional and crim­i­nal case.

“This hon­ourable court ul­ti­mately de­ter­mined my con­sti­tu­tional chal­lenge and dis­missed my ap­pli­ca­tion.

“Be­ing dis­sat­is­fied with the judg­ment, I noted an ap­peal to the Court of ap­peal and the ap­peal is due to be heard in april 2016.

“The judge­ment dis­miss­ing my ap­pli­ca­tions was handed down on 15 De­cem­ber 2015 and I noted the ap­peal the fol­low­ing day with an ap­pli­ca­tion for stay of ex­e­cu­tion of that judg­ment pend­ing ap­peal.

“The ap­pli­ca­tion for stay was heard and granted with costs by the Court of ap­peal on 26 Jan­uary 2016,” he noted.

Jus­tice Mos­ito fur­ther said the Court of ap­peal stayed the crim­i­nal pro­ceed­ings un­til the first day of the Court of Ap­peal term in april this year.

“The court, how­ever, left open the is­sue of the pos­si­bil­ity of im­peach­ment be­ing pro­ceeded with in re­spect of the 2nd im­peach­ment, ground on which the 2nd re­spon­dent con­tem­plated to im­peach me on the ba­sis of

aver­ments I had made in af­fi­davits in the pro­ceed­ings be­fore this court,” he said.

Jus­tice Mos­ito also notes how he be­lieves the con­sti­tu­tion should be in­ter­preted re­gard­ing the re­moval of judges.

“The need for the de­ter­mi­na­tion of this is­sue be­fore hand is oc­ca­sioned by the fact that un­like in other ju­ris­dic­tions, there is no pro­vi­sion in ei­ther the con­sti­tu­tion of Le­sotho, acts of Par­lia­ment or sub­or­di­nate leg­is­la­tion on what con­sti­tutes an im­peach­able of­fence as well as the na­ture of of­fences that should prop­erly be con­sid­ered im­peach­able in re­spect of the su­pe­rior court judges,” he in­di­cated.

ac­cord­ing to Jus­tice Mos­ito, judges should be sus­pended or re­moved from of­fice “only for rea­sons of in­ca­pac­ity or mis­be­haviour that clearly ren­ders them un­fit to dis­charge their du­ties and which con­duct or omis­sion are so gross and in­ex­cus­able and that also bring the ju­di­ciary into dis­re­pute.”

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