A decision to charge Court of Appeal President Justice Kananelo Mosito should be set aside as it was made on the basis of tax information obtained from the revenue authority without a court order.
This is according to Justice Mosito’s lawyer Advocate Monaheng Rasekoai in his heads of argument before the Court of Appeal.
Rasekoai says the obtaining of the tax information without a court order was “in violation of the confidentiality provisions of the Income Tax Act No 9 of 1993 and the Lesotho Revenue Act No 14 of 2001”.
He says contrary to the Director of Public Prosecution (DPP)’s, Advocate Leaba Thetsane KC, assertions, Justice Mosito was not charged for “tax evasion” but with “late filing of tax returns”.
Justice Mosito argues that “the institution of criminal proceedings against him is unconstitutional and unlawful”. He wants an order to set aside the decision of the DPP to institute criminal proceedings against him.
He says before the DPP decides to prosecute “a sitting judge, an independent tribunal must first investigate the basis for the proposed charges and the removal or suspension from office of the judge and find that the charges are well founded”.
Such a process is meant to protect judges against frivolous or vexatious prosecution, he says.
Justice Mosito is challenging the DPP’s decision to charge him with failing to file tax returns on time while a tribunal appointed by King Letsie III is still seized with the matter to ascertain whether he is guilty or not.
He argues that the DPP should wait for the findings of the tribunal first and it is only after that should it proceed with the criminal prosecution.
Rasekoai told the Court of Appeal on Monday that Thetsane KC had deposed to an affidavit saying he got the tax information from the police docket.
He said the police got the information unlawfully from the LRA.
Rasekoai said the disclosure of any documents or information received by the tax authorities, which includes information relating to the status of a taxpayer, “may only be disclosed to any person outside LRA pursuant to a court order”.
“No exception is made for the police or prosecution authorities under s202. They too are subject to and are bound to respect the secrecy provisions,” Rasekoai said in the heads of argument.
He said the confidentiality provisions are meant to create an environment for taxpayers to feel free to divulge information to the LRA for the purpose of meeting their tax obligations without fear that the same information will be disclosed to any other person.
“This does not mean that the police and prosecution services can never obtain an individual’s tax records and confidential tax information,” Rasekoai said.
“But such information may only be obtained pursuant to a court order,” he said.
He added that since Mosito’s appointment, there have been several attempts “by the executive branch” to remove him from office.
He said in February last year the Attorney General Tšokolo Makhethe instituted an application in the High Court challenging the lawfulness of Justice Mosito’s appointment as the President of the Court of Appeal.
Makhethe’s argument was that the appointment was unlawful because cabinet had not been consulted before former Prime Minister Thomas Thabane could advise the King to appoint him.
The High Court however dismissed the application saying the Prime Minister did not have to consult anybody as he had used his prerogative powers.
Four months later, after the killing of army boss Maaparankoe Mahao in a military operation and when SADC established a commission of inquiry, Prime Minister Pakalitha Mosisili sought to extend the scope of the SADC probe to include “the appointment of a new President of the Court of Appeal”.
On August 21 the government withdrew that additional term of reference under SADC pressure but the DPP instituted the current criminal proceedings shortly thereafter.
“We need to point out that it is not possible on the papers for this court to comment on the motives that have informed the steps taken by the executive against (Justice Mosito),” Rasekoai said in his papers.
“It is not necessary nor desirable to do so. However, the facts do demonstrate a clear intent and determination by the Executive to remove (Justice Mosito) from office,” he said.
He argued that the executive, through the DPP, violated the constitution by attempting to remove Justice Mosito from office through criminal prosecution without following the law.
“It was the intention of the framers of the Constitution that a judge could not be prosecuted, convicted and sentenced before he was either suspended from performing the functions of his office and/or removed from office,” he said.
Rasekoai said the Constitution only allowed an appointed judge to be removed from office for inability to perform the functions of his office…or for misbehaviour “and shall not be removed except in accordance with the provision of this section”.
“Procedures should be followed to avoid as far as possible any suggestion that a particular judge is being victimised by the executive for his or her views or decisions,” he argued.
“For this reason special procedures are usually followed in democratic societies where allegations of serious criminal conduct are made against a judge,” he said.
“Such procedures ordinarily involve the holding of an independent enquiry into whether or not the judge should be impeached. If the allegations are then found to have substance, the judge is impeached, a criminal prosecution may follow.”
The DPP’s response through Webber Newdigate’s Advocate Loubster was that Justice Mosito was suspended from office on February 12, eight days after the King established the tribunal to probe if he qualified as a judge.
“Given that the appellant (Justice Mosito) has, since the filing of the appeal, been suspended from office this ground of appeal has been rendered moot and on (Justice Mosito’s) present version there is no impediment to the prosecution,” Loubster said.
He argues that an enquiry set up by the King to ascertain if Justice Mosito has misbehaved in terms of section 125 of the constitution and a criminal prosecution are “separate and distinct processes”.
“One may precede or follow the other but neither can immunise the subject of it against the effect of the other process,” he said.
“The tribunal appointed in terms of section 125 has no role to play in criminal prosecutions,” he said.
The DPP argues that the notion that a judge cannot be prosecuted for any offence unless a tribunal constituted in terms of section 125 has pronounced on his misbehaviour “offends against any idea of justice and is calculated to bring the administration of justice into disrepute”.
“Judicial independence cannot shield a judge from the consequences of his criminal conduct. Section 125 does not provide any such protection, which would in any event directly conflict with the equality principle in section 19.”
MP defies party, backs opposition
MOHLOMINYANE Tota, the only MP for the United for Change (UFC), has defied the party’s order to stop voting with the opposition in parliament.
Tota, the UFC’s deputy leader, told thepost this week that he will vote, guided by his own conscience, and not the party’s instructions.
His defiance comes after the party publicly chastised him for voting with the opposition in parliament.
A fightnight ago, Tota angered his party when he sided with the opposition to vote against the government’s motion to continue discussing the reforms’ Omnibus Bill despite that it was being challenged in the Constitutional Court.
The government however won with 57 votes against the opposition’s 50.
The UFC issued a statement reprimanding Tota for defying its decision to always vote with the government.
But Tota told thepost this week that he was unfazed by the party’s warning.
“I will continue to vote with the opposition where need be, and I will also vote with the government where need be,” Tota said.
He said he respects the party’s position but “I also have a right to follow my conscience”.
This, he added, is because “it is not mandatory for an MP to toe the party line even when his conscience does not allow it”.
He said whether he will vote with the government or the opposition will depend “on the issue on the table”.
He said his conscience would not allow him to vote with the government on the Omnibus Bill motion.
“It was wrong,” Tota said.
“I will do the same again given another chance.”
Tota’s response comes three days after the UFC issued a statement distancing itself from his stance in parliament.
The party said its national executive committee had an urgent meeting over the weekend to discuss Tota’s behaviour.
It said its position is to always support Prime Minister Sam Matekane’s coalition government.
“‘The issue has caused a lot of confusion in the party and among Basotho at large,” the statement reads.
The party also said Tota did not bother to inform the national executive committee about his decision so that he could get a new mandate.
“He did not even inform the committee before voting,” the statement reads.
“The national executive committee held an intensive meeting with Tota about the matter because the purpose of the party is to support the government,” it reads.
The UFC said where the government goes wrong “the party will continue to confront it with peace and not with a fight” (sic).
“We have confidence in the current government because it was voted in by Basotho.”
The UFC’s statement makes it clear that the party “will not support anything against the government”.
Inside plot to oust Matekane
THE plot to topple Prime Minister Sam Matekane thickened this week amid allegations of brazen vote-buying ahead of the opposition’s planned vote of no-confidence.
The opposition is said to be ready to push out Matekane when parliament reopens sometime in September. They accuse Matekane’s government of incompetence, nepotism, corruption and using the security forces to harass opposition MPs.
But as the lobbying and touting of MPs reaches fever pitch, there are now allegations of each side using bribes to secure votes crucial in the vote to remove the government.
Democratic Congress leader, Mathibeli Mokhothu, this week accused the government of bribing its MPs to defeat the motion against Matekane.
Mokhothu, who made the allegations at the opposition’s press conference yesterdday, did not give further details or names of those bribed and those bribing.
But on Monday, the Revolution for Prosperity (RFP) MP, Puseletso Lejone, told thepost that Mokhothu offered him a M2.2 million bribe to support the opposition’s motion to upend the government.
Lejone said Mokhothu made the offer at a secret meeting, attended by almost all opposition leaders on August 14, at Monyane Moleleki’s house in Qoatsaneng.
The Thaba Moea MP said the leaders claimed that 60 MPs were supporting the motion against Matekane and wanted his vote to make it 61.
“The money was to come directly from Mokhothu,” Lejone said.
“They asked me to provide them with my bank account so that they could transfer the money.”
Mokhuthu denied the allegations, saying he wondered if Lejone “was smoking socks”.
Lejone repeated the same allegations on the sidelines of yesterday’s press conference where Matekane assured Basotho that his government has enough numbers to fend off the opposition’s attempt to push him out.
He said apart from Moleleki and Mokhothu, other political leaders who attended the meeting were Lekhetho Rakuoane, Machesetsa Mofomobe, Nkaku Kabi, Professor Nqosa Mahao, Teboho Mojapela, Tefo Mapesela and Tšepo Lipholo.
He said the leaders gave him a document showing that six RFP MPs had pledged to support the vote of no confidence. Lejone however refused to name the RFP MPs, saying he still wants them to remain in the ruling party.
He said four MPs from parties in the RFP-led coalition had signed.
They are Mohlominyane Tota (UFC), Reverend Paul Masiu (BAENA), Mokoto Hloaele (AD) and Motlalepula Khahloe (MEC).
The deal, Lejone said, was that Mokhutho would become prime minister and be deputised by Dr Mahali Phamotse.
He said the RFP’s faction was going to be rewarded with 10 ministerial seats for their role in toppling Matekane.
Nearly all the political leaders mentioned by Lejone denied attending the meeting at Moleleki’s house.
“By the living God, I have never been in a meeting with that man (Lejone),” Mokhothu said, adding that Lejone’s allegations are “defamatory”.
Mahao said he last visited Moleleki’s house, which is up the road from his, 22 years ago. Mofomobe said Lejone is lying about the meeting because he wants to curry favour with Matekane, whom he had been criticising for months.
Mofomobe said all his meetings with Lejone were at the BNP Centre and their agenda was toppling Matekane.
“We were discussing his (Matekane) incapability to rule this country,” Mofomobe said.
Rakuoane and Mapesela said they have never been to Moleleki’s house.
So did Kabi who implied that Lejone could have smoked something intoxicating “to talk about a meeting that never happened”.
Lipholo, Rev Masiu, and Tota said they were not at that meeting while Moleleki said he had “no comment”.
Matekane abusing state agencies, says opposition
THE opposition has accused the government of weaponising security agencies to harass and intimidate their MPs.
The accusations come as the opposition plots to push a vote of no confidence against Prime Minister Sam Matekane when parliament re-opens in September.
Opposition leaders told a press conference yesterday that the government has resorted to using the army and the police against its MPs because it is afraid of the motion.
Democratic Congress (DC) leader, Mathibeli Mokhothu, said the security bosses have been willing tools for the government because their bosses are desperate for Matekane to renew their employment contracts.
He was talking about Police Commissioner Holomo Molibeli, army boss Lieutenant General Mojalefa Letsoela and National Security Service (NSS) boss Pheello Ralenkoane.
“Employment contracts for the security agencies’ bosses are the ones causing these problems because the commanders end up working towards pleasing the government for their contract extension,” Mokhothu said.
He said the army has also started setting up roadblocks closer to parliament to search MPs. Mokhothu said the army searched Nkaku Kabi and Advocate Lebohang Maema KC at the parliament premises last week.
“The government is now bringing back the security agencies into party politics,” Mokhothu said.
“This was the first time the army entered the parliament premises to search members and other people there. It is an embarrassment.”
“The responsibility of our soldiers is to guard the borders and ensure security, not to enter politics or set up roadblocks on the parliament roads.”
“They are now running the country like a shop or a company.”
Basotho National Party leader, Machesetsa Mofomobe, alleged that Matekane had a meeting with the security bosses in Teya-teyaneng to discuss how they could use their institutions to clip the opposition’s wings.
“The LDF, LMPS and NSS boss’s contracts have expired, and now they are using the institution to get extensions,” Mofomobe said.
“The LDF and LMPS are doing this deliberately to protect the government.”
thepost could not independently verify this allegation.
Tefo Mapesela, the Basotho Progressive Party leader, said Matekane’s government is taking Lesotho back to 2014 when the army was wooed into politics.
He warned that officers who allow themselves to be used as pawns in political fights might find themselves in jail while their political handlers enjoy freedom.
He referred to Lieutenant General Tlali Kamoli who has been in remand prison for seven years as he faces charges of murder, attempted murder and treason.
Mapesela however said the opposition will not be intimidated because it is their democratic right to bring a motion of no confidence against the government.
“When there is time to enter a motion of no confidence it is time, it is written in the law, there is nothing wrong there,” Mapesela said.
“I once launched a motion of no confidence in the previous parliament, but I was never arrested or threatened.”
“We do not owe Matekane anything. When the time has come he has to go. We will lobby others as it is not a crime.”
The Basotho Action Party’s Nqosa Mahao criticised the police for issuing a press statement with political undertones.
In a controversial statement last week, Commissioner Molibeli said the police were aware that some MPs were coercing their colleagues to support their plot to topple the government.
Molibeli also said they were aware that such MPs were surrounding themselves with armed groups.
“Police warn those perpetrating these acts to stop immediately to avoid action that could be taken to protect the country,” Molibeli said.
Matekane made the same allegations at his press conference yesterday.
Professor Mahao said the statement shows that the police have now been entangled in politics.
“Every time parties experience internal problems the leaders conspire with the security agencies,” he said.
“The opposition leaders are now being harassed because the government wants to stop them from exercising their rights.”
The opposition’s charge sheet against Matekane
- Filling of statutory positions despite the reforms aiming to change the system.
- Using security agencies to deter MPs from ousting Matekane.
- Job losses.
- Lack of job creation.
- Failure to fulfil campaign promises.
- Protecting mining companies’ interests at the expense of Basotho.
- Incompetence and lack of communication skills.
- Arrest of MPs by the police.
- Cherry-picking reforms that insulate his government.
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