‘Politicians have hijacked judiciary’

‘Politicians have hijacked judiciary’

Maseru – WHEN Justice Kananelo Mosito was appointed President of the Court of Appeal just before the 2015 general election, the opposition flatly rejected the appointment. Leading the opposition were the Democratic Congress (DC) and Lesotho Congress for Democracy (LCD) parties.

Ever since his appointment, Justice Mosito never had a moment’s rest. Immediately after his appointment, five senior lawyers filed an application in the courts challenging his appointment. While he was fighting the lawyers, the Director of Public Prosecutions (DPP) charged him with failure to submit tax returns for 14 consecutive years since he established his law firm, KEM Chambers.

When the DC and the LCD and five other parties cobbled up a new coalition government, Justice Mosito’s days in office were numbered. The government immediately initiated impeachment proceedings against the judge with three South African judges being appointed to hear the matter. Last month the tribunal advised King Letsie III to relieve Justice Mosito of his position despite that he had tendered his resignation 10 days earlier. Justice Mosito’s lawyer, Advocate Monaheng Rasekoai, this week spoke to thepost on this and other matters.
Below are excerpts of that interview:

The proceedings against Justice Mosito were aired on radio and the entire nation heard how the panellists of the tribunal were humiliating and intimidating you. Do you think the hearing was fair?

I cannot be a good judge of the fairness of the hearing because I am most likely to render a biased verdict. As for the humiliation and intimidation, if indeed that is what it is, I have gone through worse incidents in my eight-year experience as a legal practitioner.
But a sense of humour has always kept me ashore. But there is a great lesson that the policymakers and legal scholars have to ponder from the experience. For the first time in its history Lesotho had a judge being impeached not for incompetence or incapacity but for a tax related offence in which the Lesotho Revenue Authority was not the complainant but a private law firm whose mandate was delegated by the government under the guise of what is referred to as “pro-forma complainant”.

This aspect must be interrogated by legal scholars in future. But I think it leaves a huge taint in our constitutional law jurisprudence. The tribunal in spite of being a milestone moment in the evolution of our constitutional law jurisprudence is an institution that has no rules of engagement like some other judicial institutions incorporated in the constitution.

We had qualms with this approach and we launched a case which was presided over by Justice ‘Musi but there was not much that we could cultivate out of it. The ripple effect of this is that the tribunal is not any different from an ordinary disciplinary hearing an ordinary person or employee can be subjected to. Our view was and still remains that the threshold of impeachment proceedings is much higher than an ordinary disciplinary hearing.

Section 125 which allows for a tribunal needs to be revamped and formulated in a deserving manner because if in future, judges are hauled before the same platform in the same format, the dignity of both judges and the institution of the judiciary will be severely tainted.
The proposed reform of the relevant section should be geared towards protecting the basic rights of the judges hauled before the relevant panel whilst at the same time balancing the dignity and sanctity of the institution of the judiciary.

Some people hold the view that Justice Mosito lost all the cases because he was represented by an inexperienced legal practitioner and that a much senior legal practitioner preferably a white senior counsel from South Africa would have done a much better job. What is your take on that?

I think this is yet another unfair question because I am invited to contradict a proposition that I am inexperienced and less competent to represent a most senior judge in the country.
I will not comment on that issue because instinctively I will in like manner render a biased perspective about myself which is most likely to be positive. The decision of legal representation was made by Justice Mosito himself and it was driven by his own considerations. I spent six years at the National University of Lesotho in a faculty which is currently headed by Justice Mosito himself and I have eight years’ experience as a legal practitioner.

I have done nothing else in my professional life except to litigate in all courts in this country.
There will never be a point in my professional life when I consider myself to be experienced because practise of the law is an interesting evolutionary process where you learn until you relocate to your grave. But I want to make a very important observation that the policymakers in this country should begin to invest in their local talent in all spheres. Lesotho cannot afford to be an economic colony of South Africa 50 years after independence.

By extension, there is a perception that lawyers trained at the National University of Lesotho are half-baked and incompetent when in reality, the legal gurus in this country are not from Ivy League universities from either South Africa or any other country but from the NUL.
We need to start investing in our local talent and in our own resources. We need to promote the type of affirmative action that promotes the support for local talent but it must be assessed on the basis of merit.

I do not think that race is a determinant of professional competence. The assumption that white senior counsel are more competent than black legal professionals is in itself a racist perception which is driven and inspired by racial stereotypes not facts. What pains me is the fact that there are some Basotho who hold this view, and their ideas and notions of what constitutes “professionalism” and “competence” is premised on the idiosyncrasies and standards of white legal professionals. I find that to be rather unfortunate and ill-advised.

You emotionally withdrew from the tribunal proceedings following a stormy exchange and you also elected to conduct proceedings in Sesotho when your confrontations with the panellists intensified. What was the motivation behind all those?

Some of my colleagues criticised me for being unprofessional while others were saying it was uncalled for. The proceedings were not about my feelings or me as a person, I was an agent of the most decorated legal scholar in the country. I was standing before three retired judges who are beneficiaries of the apartheid system and whose experience in the bench thrived in the period of “apartheid” one of history’s most heinous crimes. The issue became much bigger than Justice Mosito as a person but it became an issue of one competent black ‘Mosotho’ man facing persecution at the hands of three white judges.
I saw it as a manifestation of oppression of a qualified Mosotho man and an open attempt to kill the one star that the country had and it ignited an emotional toll on me.

Even the worst of criminals deserve to be accorded justice by an unbiased judicial officer and that is what we have been trained to do as lawyers as an elementary principle. I cannot and could not speak in a foreign language to express my deep-seated emotions because even when I say my prayers I do not recite them in English because speaking in a foreign language emanates from the brain while a man’s native language is what comes from his heart.

It was an instinctive human reaction driven by the circumstances prevailing then.
Justice Mosito was fired in spite of having resigned earlier last month. What are the implications of that move by the government? The desired end is clearly to destroy the judicial career of Justice Mosito but I think it is an issue that requires legal interpretation by courts of law. I am reluctant to discuss its implications beyond that because I feel the best route to explore would be that of litigating over the move by the government.

Do you have faith in the judiciary? There are numerous complaints by some sectors of society to the effect that the judiciary is compromised. What do you think needs to be done to arrest the situation? It is self-defeating for a lawyer to criticise the institution of the judiciary especially when I am an integral part of the system myself.

But the sad reality is that we need to face the truth as legal professionals in this country. The politicians have infiltrated the judiciary and there are some lawyers amongst our crop who are complicit in this unfortunate situation. Some lawyers double-up as politicians and they get conflicted when they have to protect the very institution as against their political affiliations. The members of the judiciary and the lawyers in the public bar are disillusioned because the legal profession is polarised by the institutional politics. The politicians in power wield far much power than is necessary and they clearly intimidate the legal professionals who are members of the bench.

The legal profession is largely handicapped and emasculated from protecting the judges from intimidation of the politicians. There is an entrenched and institutionalised cronyism and patronage which is cultivated under this environment. The Judicial Services Commission must be reformed so that the appointments of judges is done in an open and transparent manner. But that would not be enough in my view. We need legal professionals who have the requisite dignity and integrity to serve the country not to push self-serving ends.

Is there any hope for the judiciary and the legal profession in this country in the prevailing environment? At the basic level, we are professionals working to earn a living and that issue cannot be ignored.

If the institution of the judiciary, law enforcement institutions and the legal profession are not fully functional and run in a professional manner, we cannot cultivate a living for our respective families let alone realise the rights of ordinary people who give us the mandate in our professional work. We cannot evenly balance the conflicting interests of the ordinary people against an oppressive government. We all stand to lose in this cloudy environment. We need to regain control of the judiciary as an institution that is dominated by legal professionals not politicians. Tough choices need to be made and robust reforms must be put in place. The reality is that politicians have run away with the judiciary and we need to regain control.

There was a perception that Justice Mosito was using the Law Society of Lesotho to fight his battles, what is your take on that issue?

I am not a spokesperson of the Law Society and neither do I have the mandate to speak on its behalf but if that statement is a political one I will not bother to comment on it because I am not a politician. I will also be (reckless) to express an opinion on the issue because the case is still pending in the Court of Appeal.  I must however point out that there is a legion of cases in this jurisdiction which were launched by the regulatory body of the legal profession for and or against the appointment of a judge. I believe the statement has no merit in the legal context.

Staff Reporter

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