Court of Appeal President Justice Kananelo Mosito has been suspended, paving the way for his impeachment proceedings by the government to commence.
The senior judge’s suspension by King Letsie 111 is the culmination of a seemingly spirited bid by Prime Minister Pakalitha Mosisili to get rid of the judge promoted to the most high judiciary post by the premier’s predecessor Thomas Thabane.
Justice Mosito’s indefinite suspension is with effect from 12 February 2016. It was published in a government gazette dated 11 February 2016 and signed by King Letsie III, acting on the advice of Dr Mosisili in accordance with the constitution.
The suspension is with full benefits and was made in line with Section 125(7) of the Constitution, the Gazette said.
In addition to the Gazette, the Government Secretary (GS)’s office also issued a statement this week confirming Justice Mosito’s suspension, which it said was to allow investigations into allegations that he did not pay income tax between 1996 and 2014.
Dr Mosito was appointed Court of Appeal president in January 2015, taking over from Justice Michael Ramodibedi who had resigned after losing a protracted legal battle to stop his impeachment for alleged abuse of office.
Part of the statement reads: “The office of the Government Secretary announces that in terms of the Legal Notice of 12 February 2016, the President of the Court of Appeal, Dr Kananelo Mosito, has been suspended from duty to allow investigations into his alleged violation of tax laws.
“This follows the advice of the Prime Minister, Dr Pakalitha Mosisili, to His Majesty King Letsie III, that it is to protect the courts’ dignity that the investigations proceed when he is not in his position.
“In the meantime, preparations are at an advanced stage to appoint the acting President of the Court of Appeal.”
Repeated attempts to talk to Dr Mosito yesterday were fruitless while his lawyer, Advocate Monaheng Rasekoai, was also not available for comment.
Dr Mosito’s suspension also follows a letter written by Dr Mosisili on 8 February 2016, in which the prime minister outlined his intention to advise the King to suspend him.
In the letter, Dr Mosisili gave Justice Mosito seven days to show cause why he should not go ahead with his objective to suspend the top judge.
Part of the premier’s correspondence reads: “In the circumstances, I intend to advise His Majesty the King to suspend you from office and exercise of its functions, pursuant to section 125(7) of the constitution.
“In my view, it is inimical to the administration of justice and integrity of the judiciary that in all the circumstances of your case, you should still continue being in office and exercising the functions thereof.
“However, I invite you to make representations, showing cause, if any, why I cannot proceed as indicated above.”
On 4 February 2016, Dr Mosisili had also written to the judge regarding the same issue.
In the letter, titled ‘Enquiry in terms of Section 125 of the Constitution’, the premier informed Justice Mosito that he had advised the King to establish a tribunal to investigate his conduct and which could lead to his impeachment.
The letter read in part: “My letters of 8 October 2015 and 16 October 2015, including yours of 21 December 2015, bear reference. Further, in the same connection, reference is to the Court of Appeal decision and order of 26 January 2016, whose effect was to refuse your application that the intended enquiry under Section 125 of the constitution, be halted.”
Dr Mosisili was referring to Justice Mosito’s failed Constitutional Court bid to prevent the premier from establishing the impeachment tribunal against him.
The prime minister said it was against this background that he advised the King to establish the tribunal.
“Therefore, you are hereby notified that His Majesty the King has appointed a tribunal in terms of Section 125(5) of the Constitution to enquire into the question of your removal from office for misbehaviour or inability to perform the functions of your office as the President of the Court of Appeal, to which office you were appointed on 15th January, 2015,” he said.
The prime minister then announced the names of members of the tribunal, who are all from South Africa. The judges are Justice Frederik Daniel Jacobus Brand, Justice Noel Victor Hurt, and Justice John Godfrey Foxcroft.
According to Dr Mosisili’s letter, the tribunal will begin its work on 9 March 2016.
The letter continues: “To that end, you are required to attend the first sitting of the tribunal at 10am on 9 March 2016 in Court 1 of the High Court of Lesotho for further conduct of the proceedings to be determined.”
In the correspondence, Dr Mosisili also outlines why he wants Justice Mosito out of office.
“During the period 1996 – 2014, and while you were a practicing advocate and taxpayer as defined in Section 3 of the Income Tax Act, (‘the Act’) you did fail to render a return of income tax for each succeeding year of assessment (‘fiscal year’) on or before 30 June of the following year, to wit, on 19 occasions, in contravention of Section 128(2) read with Section 175(1) of the Act, and were only registered as a taxpayer with the Lesotho Revenue Authority (LRA) for the first time on 20 April 2015,” he said.
“Such conduct constituted misbehaviour rendering you unfit to continue in office and also renders you unable to properly perform your functions as President of the Court of Appeal.”
The premier also took exception to Justice Mosito’s argument that some top lawyers had also not paid income tax and that his prosecution was discriminatory.
To prove his point, the judge in October last year requested the Constitutional Court to compel the LRA to disclose the tax status of all High Court and Court of Appeal judges, as well as five of the country’s top lawyers.
Dr Mosisili charged in his letter: “Such investigations were conducted without the knowledge or consent of the subjects of the investigations.
“Such investigations contravened the secrecy provisions of Section 202 of the Act and constituted misbehavior, rendering you unfit to continue in office.”
It seems Judge Mosito, from inferences from his court papers, and his sympathizers are of the view that he is being targeted simply because he was appointed by Dr Thabane. Moreso after the removal from office of several other senior officers, mainly principal secretaries, from their posts after Thabane’s ouster. Mosito’s supporters further accuse Dr Mosisili of wanting to remove judge Mosito to put his own man at the apex of the top court.
But Dr Mosisili’s sympathizers, including many top advocates, who went public with their opposition of judge Mosito’s appointment by Dr Thabane in the first place, insist that the Prime Minister is right because the top judge indeed broke the law by not filling his tax returns.
“The law is the law and it is obligatory for every citizen to submit their tax returns. The onus is even higher on the judges who should uphold the law. To seek to justify evading this obligation on the basis that others did not do it – as (Judge) Mosito had endeavoured to do- simply does not wash…. He (Mosito) cannot have his cake and eat it,” said a lawyer, who declined to be identified for professional reasons, but who is supporting Dr Mosisili’s actions against Judge Mosito.