Lessons to be learnt from Mosito debacle
THE Court of Appeal’s recent decision on His Lordship Justice Kananelo Mosito’s fight against the organs of the state attracted wideranging views from various sectors of the legal community both in the country and abroad.
It would be gravely dangerous if the said judgement would be analysed from the perspective of the narratives of success and or failure.
Based on my 40-years’ experience as a legal practitioner, half of which I devoted my lifetime to the assimilation of human rights and the balance of executive power of government through litigation — I will be bold enough to suggest that the wheel of justice is not exclusively moulded through favourable judgements rendered by judges but by the bold efforts of litigants of taking organs of state to task where they harbour the strong view that the relevant institutions exceed the limits imposed by the supreme law of the land.
In progressive jurisdictions, the judiciary is able to flaunt its autonomy from executive influence and judicial activism is the order of the day. The case shall go down in history as a bold effort by a sitting judge to take the organs of the state to task in an attempt to invigorate judicial independence and an open effort to curb executive abuse of power.
It will clearly attract academic exegesis in various platforms and shall clearly influence public policy and the role of the judge. The case needs to be seen in the context of whether or not judges in this jurisdiction are constitutionally insulated from executive abuse of power.
The real question should be whether the case was about ‘Rendering unto Caesar the things that are Caesar’s’, but about settling political scores and an evidently improper motive at the expense of state apparatus. The case, as many would like to perceive it, is not about the moral turpitude of a senior member of Lesotho’s judiciary.
It further needs to be analysed within the context of making a reasonable conclusion based on the decision to the effect that the judiciary in Lesotho’s constitutional schema of things is evidently vulnerable to politicians at the helm of executive power.
The trick employed by the government in dealing with the learned judge is the oldest in the book — the same trick employed by the American government almost a century ago when dealing with notorious gangster — Al Capone — when all efforts by the state apparatus could not secure a conviction against him — to trail the man’s non-compliance with revenue laws.
Capone’s indictment lay in tax evasion but the learned judge’s charge is materially distin- guishable because at all material times he was and still remains charged of “delayed filing of income tax returns” contrary to the view harboured by ill-informed pundits to the effect the same charges are one and the same as “tax evasion”.
The learned judge is evidently a convenient scapegoat that needs to be slaughtered perhaps for political incorrectness like most of us who were and remain participants in the public policy environment in this country.
Irrespective, criminal charges or convictions shall not hinder the political discourse nor impede the notion of influencing public perspective. How many members of the bench can boldly stand before the entire Basotho society and profess to be ethical virgins without blemish when it comes to revenue laws?
Is this prosecution inspired by a government sanctioned policy of promoting compliance with revenue laws by all members of the bench? If the answer is in the affirmative it suggests that all members of the bench particularly those who assumed public office from either the bar or side-bar are “clean”?
What more can be said about high profile politicians in this country some of whose wealth is acquired below the radar and in some instances outside the perimeters of the law?
Utilisation of state apparatus particularly law enforcement machinery to fight political battles is an extremely dangerous gamble because political power sustains for no more than five years and a change of the regime can lead to the turn of tables and reverse persecution of the persecutors.
If one was to compare institutional politics to the jungle, one may say, in the real jungle the hunters are at some point hunted.
If, indeed, it is permissible for the state to rake up the judge’s past in order to remove him or her from office it effectively means that the bench is most likely to remain unoccupied by any human being.
In order for one to have a clearer understanding of whether or not the charges have any merit or are clearly politicallymotivated and engineered by the ruling regime.
We need to explore whether the Lesotho Revenue Authority (a parastatal) since its establishment almost 15 years ago has ever initiated any charges against any public functionary or holder of public office over “delayed filing of tax returns” and if the statistics are forthcoming in that regard we would need to move further and explore whether such an endeavour is a state sanctioned policy and the mischief that is being sought to be curtailed. One cannot help it but draw a conclusion of ad hominem prosecution.
One of the most unsettling post-mortem analysis that has dominated the media landscape is that the learned judge ought to have known and perhaps appreciated that fighting the government of the day is nothing but a battle that could never be won — as unsettling as this view may be — it loses sight of the fact that the real essence of the case was not a sporting event where the winner earns a medal for victory.
The real victory lies in the magnification of the government’s selective use of opinion and apparatus to fight political battles and a regrettable distortion of public institutions by the head of government supported by senior lawyers in the government bureaucracy.
This case was not about the learned judge as an individual but an institutional battle for power — it becomes important for any given ruling regime to remotely-control or in some instances directly influence the activities and or outcomes of decisions of the most apex court of the land.
The case from the onset was never a legal battle but a contest for institutional power of a government organ — The Court of Appeal of Lesotho. Favourable decisions to the ruling regime legitimize the activities of the government. We have, for the first time, witnessed a verdict in favour of the government which sanctions continued detention of soldiers accused of mutiny prior to a conviction.
These poor men are about to spent their anniversary beginning next week! Continued on Page 25 . . .