Phoofolo  warns Majoro

Phoofolo warns Majoro

MASERU-ATTORNEY General Haae Phoofolo has warned Prime Minister Moeketsi Majoro that he has crossed the red line by sending him on terminal leave pending the expiry of his contract.

Last week, Majoro instructed Advocate Phoofolo to go on leave until February when his three-year contract ends. He said he wants to look for a new Attorney General early in order to align the office with his ambitions as the Prime Minister.
He appeared to insinuate that Advocate Phoofolo, 73, was now too old to handle the increased “workloads to be generated by the rapid implementation of policies as well as the on-going reform process”.

Advocate Phoofolo seemed to have accepted the Prime Minister’s decision and sounded magnanimous in an interview with a local weekly. The newspaper painted a picture of a contented man, quoting him as saying he will spend more time with his wife and grandchildren.

But thepost can now reveal that Advocate Phoofolo is not going quietly and the government might be stuck with him until the end of his contract.
That much is clear in a letter Advocate Phoofolo’s lawyers wrote to the Prime Minister on September 17.
Mei & Mei, the lawyers, told the Prime Minister he doesn’t have the authority to send Advocate Phoofolo on terminal leave. That authority, they argued, is vested in the King who appoints the Attorney General under section 140 of the constitution.

This, the lawyers said, meant that Advocate Phoofolo’s appointment, benefits and leave can only be handled by the King.
“We wish to draw your attention to the fact that, and hereby record that you have no powers at law to suspend and/or place the Attorney General on forced leave as you purported to do in view of the fact that your office is not the appointing authority in terms of section 140 (1) of the Constitution,” said Mei & Mei.

They said that section, together with the Office of the Attorney General Act of 1994, did not “envisage that the Prime Minister could invoke the powers which have not been bestowed upon him”.
They added that the import of Majoro’s letter was that he was suspending or forcing Advocate Phoofolo to go on terminal leave simply because “he is not and would not be competent enough to deal with the challenges facing the office”.

The letter however ends on an ambiguous note, saying Advocate Phoofolo “reconsidered his position and decided that no practical purpose will be served by engaging in legal action and strictly reserve his rights in this regard”.

That could be read to mean Advocate Phoofolo is either silently walking away or keeping the option of a legal route open.
But Advocate Phoofolo was clear about his intentions in an interview with thepost this week.

He said he is not accepting the Prime Minister’s decision because it’s illegal.
“I am not refusing to leave but just saying it should be done according to the law. As things stand, the decision to remove me is illegal because it was done by the Prime Minister and not the King,” he said.

“What I don’t accept is the illegality of it all. If you deal with me properly then I have no reason to bother you but if you don’t follow the law then I will have no option but to seek redress.”
“I don’t like to start competing for jobs with small boys. I am too old for that. I am only concerned about the illegality. As a lawyer, I feel that it will not appear right if I go and leave this illegality standing as it is.”
“That will set a bad precedent. I don’t want to be the AG that accepted an illegality. It will give the impression that I was advising the government wrongly and accepted an illegal decision implemented against me.”
“In other words, I am warning him (the Prime Minister) that he has crossed the red line,” he said.

“As it is now I don’t accept his decision. That position is based on principle, not a reluctance to leave office.”
Phoofolo, who was admitted as an advocate in 1976 and started his private practice in 1990, appears to have fallen out with his principals in government.

A few weeks ago, Justice Minister Nqosa Mahao criticised the Judicial Services Commission (JSC), to which Advocate Phoofolo is a member, for advising the king to appoint some five candidates as High Court judges.
Mahao described the decision as “politically motivated”, accusing Advocate Phoofolo and Acting Chief Justice Maseforo Mahase of surreptitiously making the recommendations to the King without the input of two other JSC members.

The King is said to have refused to make the appointments but the controversy lingered on, with media reports suggesting that the Cabinet recently hauled Advocate Phoofolo to the coals for his part in the decision.
Advocate Phoofolo however told thepost that he “doesn’t regret the decision because the JSC followed the law to the letter”.
“If someone is not happy with that decision they can approach the courts because that is the right thing to do. What the JSC did has been the practice since 1993 when we had this new constitution.”

Apart from the dispute over judges, Professor Mahao also seems to have had another gripe with Advocate Phoofolo.
Speaking on a local radio station, Professor Mahao alleged that the Attorney General had failed to provide a legal opinion on how to sort out the mess at the Independent Electoral Commission (IEC).

A caller then asked the minister why the government was keeping the Attorney General if he doesn’t take orders, to which he said the matter was being handled administratively.
A few days later Advocate Phoofolo was shown the door.
Advocate Phoofolo also appears to have ruffled feathers within the All Basotho Convention (ABC)’s national executive committee, some of whose members are said to be nursing a grudge against him for appearing to be siding with former Prime Minister Thomas Thabane.

Shakeman Mugari

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