An­other court rules against Mos­ito

Lesotho Times - - News - Lekhetho Nt­sukun­yane

Sus­pended Court of Ap­peal pres­i­dent, Kananelo Mos­ito, has suf­fered an­other blow af­ter the Con­sti­tu­tional Court dis­missed his ap­pli­ca­tion to block im­peach­ment pro­ceed­ings against him.

The rul­ing, which was de­liv­ered on Fri­day last week, comes a month af­ter the Court of Ap­peal up­held a High Court rul­ing to have Jus­tice Mos­ito pros­e­cuted for al­leged tax eva­sion, which prime Min­is­ter pakalitha Mo­sisili had used to con­vene a tri­bunal for his pos­si­ble im­peach­ment.

In his ap­pli­ca­tion filed be­fore the Con­sti­tu­tional Court in Fe­bru­ary this year, Jus­tice Mos­ito wanted the court to rule a judge could only be im­peached for of­fenses com­mit­ted while he or she was in of­fice and not be­fore oc­cu­py­ing the post.

Jus­tice Mos­ito also sought an or­der that a tri­bunal con­tem­plated in Sec­tion 125 of the coun­try’s con­sti­tu­tion was “only com­pe­tent to in­ves­ti­gate mis­be­haviour which al­legedly arose dur­ing the judge’s ten­ure of of­fice”.

He fur­ther sought the court to “re­view and set aside as un­con­sti­tu­tional, the prime Min­is­ter’s de­ci­sion to advise the King to ap­point the tri­bunal and sus­pend him from his du­ties”.

Jus­tice Mos­ito also sought a per­ma­nent in­ter­dict against dr Mo­sisili “from ever mak­ing a re­quest to the King for the ap­point­ment of a tri­bunal to en­quire into his re­moval from of­fice on the grounds the Prime Min­is­ter had used to advise the King”.

But a panel of three judges from South Africa, namely TM Mak­goka, n Kol­lapen and W Hughes, ruled against Jus­tice Mos­ito, cit­ing, among oth­ers, that “the mis­be­haviour re­ferred to in Sec­tion 125 is not limited to con­duct which oc­curred when the judge is in of­fice. It in­cludes the con­duct of a judge prior to be­ing ap­pointed to ju­di­cial of­fice.”

dr Mos­ito was in­dicted on 21 Au­gust 2015 for al­legedly vi­o­lat­ing tax reg­u­la­tions by fail­ing to sub­mit his in­come tax re­turns on time be­tween 1996 and 2014 while prac­tic­ing as an ad­vo­cate.

On 31 Au­gust 2015, Jus­tice Mos­ito ap­peared in court as sum­moned, but ob­tained an in­terim or­der stay­ing the crim­i­nal pros­e­cu­tion pend­ing the de­ter­mi­na­tion of his case in which he chal­lenged the con­sti­tu­tion­al­ity of the trial.

But on 8 Oc­to­ber 2015 dr Mo­sisili wrote to Jus­tice Mos­ito in­form­ing him that he had be­come aware of the al­le­ga­tions lev­elled against him.

Be­cause of the al­le­ga­tions, the prime Min­is­ter said, he was con­sid­er­ing whether to rep­re­sent to the King that the ques­tion of his re­moval from of­fice be in­ves­ti­gated in terms of Sec­tion 125(5) of the Con­sti­tu­tion.

The prime Min­is­ter ac­cord­ingly in­vited dr Mos­ito to make writ­ten rep­re­sen­ta­tions why he should not pro­ceed to advise the King as he was con­tem­plat­ing.

But Jus­tice Mos­ito, court doc­u­ments show, did not re­spond to dr Mo­sisili’s let­ter.

Hand­ing down the rul­ing last Fri­day, the judges noted dr Mo­sisili ob­served the rules of nat­u­ral jus­tice and re­quire­ments of fair­ness by af­ford­ing Jus­tice Mos­ito an op­por­tu­nity to make rep­re­sen­ta­tions why King Let­sie III should not be ad­vised to ap­point the tri­bunal to en­quire into his fit­ness to hold of­fice, “and why he should not be sus­pended pend­ing the en­quiry by the tri­bunal”.

The judges noted: “The prime Min­is­ter’s de­ci­sion to advise the King to ap­point the tri­bunal, and to advise the King to sus­pend the ap­pli­cant, was nei­ther ir­ra­tional nor un­law­ful, and there­fore do not fall to be re­viewed. The tri­bunal is com­pe­tent to en­quire into the ap­pli­cant’s fit­ness to hold of­fice based on the al­leged tax eva­sion and whether the ap­pli­cant’s con­duct in dis­clos­ing the tax af­fairs of his col­leagues had the ef­fect on his abil­ity to dis­charge the du­ties of his (tax af­fairs).”

The judges also in­di­cated in or­der for the pub­lic to have re­spect and con­fi­dence in the ju­di­ciary, it was im­per­a­tive that the con­duct of judges, “both in their pri­vate af­fairs and in dis­charge of their pub­lic func­tions, should man­i­fest ab­so­lute in­tegrity. “It is there­fore in the in­ter­est of both the ap­pli­cant and the ju­di­ciary in Le­sotho that the al­le­ga­tions of im­pro­pri­ety on the part of the ap­pli­cant should be fully and trans­par­ently in­ves­ti­gated by an in­de­pen­dent tri­bunal.”

The judges also ob­served that dr Mo­sisili stated to Jus­tice Mos­ito in a let­ter dated 12 Fe­bru­ary 2016 “that it is un­ten­able that while the ap­pli­cant is un­der in­ves­ti­ga­tion, he should con­tinue in of­fice and ex­er­cise his func­tions. I (we) agree. It is par­tic­u­larly so be­cause the ap­pli­cant is also fac­ing crim­i­nal charges. It would not re­dound to the credit of the ju­di­ciary for the ap­pli­cant to re­main in of­fice pend­ing the out­come of the en­quiry by the tri­bunal. The sum to­tal of the above is that the ap­pli­ca­tion must fail.”

The rul­ing paves way for the tri­bunal in­ves­ti­gat­ing Jus­tice Mos­ito to re­sume at a lo­cal ho­tel af­ter the probe had been halted pend­ing the out­come of the Con­sti­tu­tional Court case.

Ad­vo­cate Mon­a­heng Rasekoai, who rep­re­sented Jus­tice Mos­ito in the mat­ter, yes­ter­day told the Le­sotho Times the im­peach­ment tri­bunal would now con­tinue with the in­quiry fol­low­ing last week’s rul­ing.

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