Lessons to be learnt from Mos­ito de­ba­cle

Lesotho Times - - Leader - ad­vo­cate Haae Phoofolo k.c.

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 . . .

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