Judge refuses to step down

Judge refuses to step down

MASERU – A COURT of Appeal judge, Justice Moses Chinhengo, has refused to recuse himself from cases involving Dr Kananelo Mosito.
Justice Chinhengo told four top lawyers who had asked him to recuse himself that they had not given him enough reasons for him to do so.
Advocates Motia Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika had filed an interlocutory application for the judge’s recusal in an urgent case in which the Law Society of Lesotho sought the Court of Appeal to be assembled, two years after it became dysfunctional because it had no president.
“You have not given me any convincing reasons for me to recuse myself,” Justice Chinhengo said.

Advocate Teele had argued that Justice Chinhengo would be conflicted if he heard the appeal cases because he was appointed at the recommendation of Justice Mosito.

He also said Justice Chinhengo was mentioned by name in correspondents between Prime Minister Thomas Thabane and South African judge, Justice Yvonne Mokgoro, whom the government had appointed to be president of the Court of Appeal.

The appointment was later withdrawn.

Justice Mokgoro had not called judges appointed during Justice Mosito’s tenure in the office of the court’s president, an issue that appeared to rattle the government.

Teele said although he did not personally think Justice Chinhengo would be biased “there will be public perception of bias” because of his close relationship with Justice Mosito.

He said the fact that the judge was appointed to sit in the country’s apex court at the recommendation of Mosito spoke volumes about the perception of bias the public would have in regard to his judgments.

He also said the fact that the correspondence between Thabane and Justice Mokgoro is now in the public domain after it became part of evidence in another case, it surely would make people form negative opinions about judicial decisions Justice Chinhengo would reach.

“This does not necessarily mean that Your Lordship will be biased in his judgments but there will be perception of bias because you were mentioned,” Teele said.

Another reason for their demand for Justice Chinhengo to recuse himself stemmed from section 123.5 of the constitution which stipulates that the Court of Appeal can only be convened by its president.

Teele argued that since for the past two years the office of the president has been vacant “nobody has authority to convene the court and assign duties to judges”.

He argued that ever since Justice Mosito was impeached and the government appointed Justice Mokgoro by a gazette, it is Justice Mokgoro only who could have legal powers to assemble the court.

He said the government’s attempt to appoint Justice ‘Maseshophe Hlajoane as the acting president while Justice Mokgoro was still in office was illegal and therefore she could not have any authority to convene the court.

Teele said in his understanding Justice Mokgoro was the only one with that authority.

“We don’t know how Your Lordship was appointed to hear this case,” Teele said.

“We even thought you have been appointed the acting president,” he said, arguing further that in terms of the law the acting president is Justice Mokgoro.

Teele said it was against the law that Justice Chinhengo was sitting in the Court of Appeal hearing a case without having been properly assigned by the president as required by the constitution.

Acting on behalf of the Law Society, Attorney Monaheng Rasekoai cited section 144.4 of the constitution as the authority that gave Justice Chinhengo a mandate to hear the civil appeal.

The section stipulates that when the office of the president is vacant any judge of the Court of Appeal or anybody appointed by the King can assume the duties of the president until the president is appointed.

Rasekoai also reasoned that Justice Chinhengo could not be asked to recuse himself because his sitting to hear the appeal was in harmony with the Constitution.

Teele failed to answer Justice Chinhengo’s question of what he would do, as a seasoned lawyer, to remedy the situation.

Rasekoai told the judge that it was in the best interests of all for appeal cases to be heard.

He said the four top lawyers themselves had strings of pending cases in the Court of Appeal that could not be heard because nobody could assemble the court in the absence of the president.

As regard Teele’s argument that Justice Chinhengo had a relationship with Justice Mosito and therefore could not hear cases that would involve him, Rasekoai said that was tantamount to saying sitting on the bench by judges to hear cases amounted to a close relationship.

The court finally found that there was no close relationship between Justice Chinhengo and Justice Mosito.

The Law Society filed an urgent civil appeal last week seeking the court to hear pending cases irrespective of the absence of the president.

It said litigants were prejudiced because their cases were not being heard as judges and politicians fight over who should occupy the office.

Staff Reporter

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