Ex-NSS boss fights back

Ex-NSS boss fights back

MASERU – FIRED National Security Service (NSS) boss, Colonel Tumo Lekhooa, told the Constitutional Court on Monday that his dismissal from the spy agency was unconstitutional and therefore null and void.
Colonel Lekhooa was seconded by then premier Pakalitha Mosisili to the NSS as its director general in September 2016 from the Lesotho Defence Force (LDF)’s Military Intelligence where he was a director.

He was however fired in July 2017 by Prime Minister Thomas Thabane. He was sent back to the Military Intelligence.
He then skipped the country and later filed an application in the Constitutional Court challenging his removal.
Col Lekhooa’s lawyer, Advocate Motiea Teele KC, told a panel made up of Justices Semapo Peete, Molefi Makara and Moroke Mokhesi that Lekhooa’s “termination was done in an unconstitutional manner and therefore null and void”.
Teele argued that the “exercise of the power to dismiss him is an exercise of public power which is constrained by the requirement to act fairly, rationally and in a manner that is not arbitrary”.

He said on the contractual level, which could not be divorced from the exercise of the public power to dismiss, Lekhooa complains that Thabane acted without a just cause and in breach of his contract.
He reasoned that the contract did not provide for payment in lieu of notice and that in any event the contract could only be terminated for just cause.
The termination of employment by Thabane could not be done without just cause, Teele said.
“It is to be borne in mind that (Lekhooa) was occupying a public office created by the Constitution and was not dismissible at will as if he was an employee at common law,” he said.
Teele said Lekhooa’s appointment was effected in terms of Section 148(3) of the Constitution read with Section 6 of the National Security Service Act.

The Constitution provides that there shall be a National Security Service that shall be responsible for the protection of national security.
It also says the Command of the National Security shall be vested in the Director of the National Security Service who shall be responsible for the administration and discipline of the National Security Service.
It says the power to appoint a person to hold or act in the office of Director of the National Security Service and the power to remove him from that office shall vest in the Prime Minister.
“This is significant in that the power of removal is reserved for conferment on the Prime Minister in terms of the Constitution only.”
“…the act of removing the Director of the NSS is a Constitutional act,” he said, arguing that Lekhooa’s case is fit to be a constitutional case, which Thabane refutes.

He cited Masetlha V President of South Africa where the court held that “The power and indeed obligation of the President to appoint the head of intelligence service is not sourced from a private law relationship”.
“It is a public law power. In other words, the dispute between the parties is not merely about the breach or wrongful termination of an employment contract. It is rather about whether public authority has been exercised in a constitutionally valid manner.”
Teele said Thabane was obliged to observe the rules of natural justice, in particular the principle to hear the other side (audi alteram parterm) before he could terminate Lekhooa’s contract.

Lekhooa contends that the contract was not terminable without just cause, arbitrarily or at will, Teele argued.
He cited Steyn P in Commander of LDF & Ors V Mokoena & Ors where the court held that “(To) seek to terminate the service of commissioned officers without disclosing to them any grounds upon which the interests of defence or public interest require it and without affording them an opportunity to be heard thereon would seem to me to be manifestly unfair”.
“It could create a perception that arbitrary or ill-motivated decisions highly prejudicial to those who are subject to such powers can be taken.”
He also cited the English law saying “The duty to give reasons for an administrative decision is a central element of the constitutional duty to act fairly”.

“And the failure to give reasons, which includes proper or adequate reasons, should ordinarily render the disputed decision reviewable,” he quoted from the English law.
“(Thabane) treated (Lekhooa) like a domestic servant with no rights even to dignity,” he said, adding: “It was a humiliating manner of dismissing a public officer whose office is created by the Constitution”.
“This had a negative impact on (Lekhooa’s) reputation. It is the duty of a public official in a democratic state to provide reasons as a matter of accountability and transparency.”

On behalf of Thabane, Attorney Monaheng Rasekoai argued that Clause J of the contract was followed to the letter when Lekhooa was fired.
The Clause reads: “Notice to terminate secondment may be done by either party through a written notice of three (3) months. The termination shall not affect or otherwise limit any rights including benefits accrued to the party during the subsistence of the secondment.”
The letter of dismissal says, after quoting Clause J, “Please note further that you will be paid all your benefits accruing from your contract”.
Rasekoai argued that Lekhooa’s dismissal “was (done) in line with the termination clause of the contract and his rights arising out of the contract were secured and that dispels any suggestion of prejudice which is an underlying factor in review proceedings”.

Arguing that the Constitutional Court lacked jurisdiction over the matter, Rasekoai said the High Court has jurisdiction where a litigant alleges a contravention in relation to him.
He said the High Court sitting as a Constitutional Panel has jurisdiction to determine the matter where there is a challenge to the constitutionality or otherwise of the particular legislation.
“The mere fact that the public functionary is exercising powers conferred by the constitution does not necessarily confer the Constitutional Court with the power to preside over such a matter,” Rasekoai said.

He said Lekhooa does not complain that Thabane had no power to dismiss him, he is simply complaining that he did not follow Clause J of the contract in that he was not given three months’ notice as provided.
“This does not need the interpretation of the Constitution but the interpretation of the contract of engagement attached to the founding affidavit of (Lekhooa),” he said.
“The audi principle does not make the matter a constitutional one.”
“It can at worst be a ground for review in the High Court exercising its ordinary jurisdiction in terms of section 119 of the Constitution.”
Rasekoai said “this is a clear case of unfair dismissal which does not raise a Constitutional issue”.
He said Thabane complied with the contract.

He further said Thabane’s decision was an executive function which is not subject to review on the basis of non-observance of principle of procedural fairness, including that of prior hearing before termination.
“It would appear that the Courts have held the view that when a public functionary such as the Prime Minister in the present case exercises power that is directly conferred by the Constitution, such power is executive and attracts legal consequences different from those applicable to administrative acts,” he said.

“Procedural fairness is not a ground for review of an executive action.”
Rasekoai said the Constitution itself does not stipulate the procedure which has to be followed in removing the Director General of NSS.
He said the Director General of NSS in Lesotho does not have the security of tenure and termination of his engagement can only be interpreted within the scope of common law.

Senate Sekotlo

 

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