13 January 2016

Lesotho: A Matter of Justice - a Desperate Judge Fighting for Survival

Photo: The Herald
File photo.

Judge-watcher alert! This story of a top judge, desperately fighting off tax evasion charges and an associated impeachment tribunal, may have slipped past unnoticed over the year-end holidays.

Here's a quick catch up: Hard to believe, but once again it's a tale from Lesotho. For the second time in less than two years, the head of the judiciary in that country is in the middle of a stand-off with government.

Kananelo Mosito, appointed to head Lesotho's highest court in January 2015, is fighting for his professional life. He faces criminal charges for not having submitted tax returns for nearly 20 years, as well as a related impeachment tribunal.

Mosito's predecessor, Michael Ramodibedi, left Lesotho in a hurry in April 2014 after he resigned rather than submit to an impeachment tribunal that was ready and waiting to hear a slew of serious allegations against him. Following unsuccessful court action to prevent the tribunal from getting started, Ramodibedi decamped to Swaziland where he was already Chief Justice. After a turbulent period in office there his tenure came to a sensational end, and he has now quit Swaziland as well.

From the start Mosito's appointment was as controversial as that of Ramodibedi and there has already been an unsuccessful court challenge to its validity. Central to the controversy is the fact that Mosito was appointed shortly before bitterly divisive elections, at a time when all the parties in the out-going coalition executive had committed themselves not to take any important steps, like concluding key appointments, in the run-up to the national polls.

In light of this agreement, the appointment of the top judicial officer should have waited until after the elections, said critics.

Three things make Mosito's pending criminal trial particularly interesting: First, he claims it is part of a campaign to get rid of him by elements of the present government that objected to his appointment in the first place. This may be true, but ironically Ramodibedi made the same claim when he tried to stop attempts to oust him first in Lesotho and then in Swaziland. Ramodibedi had little success in trying to re-frame the crisis he faced as a rule of law issue, and it remains to be seen whether Mosito will fare any better.

Second, Mosito has not denied the charges that he failed to submit tax returns. He has not issued any public statement of denial or produced proof that he did submit, or even said that he will produce such proof in court. Of course he might simply be keeping his tinder dry. But somehow this seems unlikely given extraordinary remarks he made in court papers. Claiming he was the victim of selective prosecution he said there was no judge in Lesotho that was tax compliant and he named other professionals, including senior members of the Bar, whom he said were also not up to date with their tax returns.

Third, of course, is Mosito's position. For the head of a country's judiciary to claim that every one of his judicial colleagues is, in effect, a tax criminal, will inevitably make relations on the Bench extremely difficult in the future. If indeed there is a future for him on that bench. And then there are the problem the courts will surely now face in all tax evasion cases they hear. You can just imagine the tactics to avoid trial - recusal applications and other stratagems - based on the claims of Mosito as head of the judiciary, that Lesotho's entire Bench of judges lacks probity at least in matters of tax.

So far Mosito has brought no fewer than seven applications trying to stave off the criminal trial and tribunal. They have resulted in several interim interdicts and a substantive judgment delivered by three foreign (South African) judges sitting as a Constitutional Court in Lesotho.

Basically these judges had to decide whether under the constitution of Lesotho, the Director of Public Prosecution could simply put a judge on trial, or whether the constitution required that an inquiry should proceed any trial.

In mid-December 2015 the three judges held, unanimously, that there were no constitutional impediments to a trial going ahead. Next day Mosito was back in court asking for a stay in the effect of the judgment. On 30 December he was back again, without notice to the other side, for another application.

All this litigation, increasing in intensity, will be brought together on Monday 18 January when the Chief Justice will give guidelines on the way forward. She will be asked whether she has yet found a foreign judge to hear Mosito's application to stay the effect of the December Constitutional Court judgment. She will also be asked whether a Bench of five specially appointed foreign judges has been secured to hear Mosito's appeal against that same December decision.

If Mosito could persuade a court to find that he is the victim of selective prosecution this would obviously be the best outcome as far as he is concerned: it would let him off the tax hook, recast this dispute as a human rights matter and allow him to emerge as something of a martyr.

At this stage, however, it's far more likely that his fate depends on a decision by the Appeal Court - a forum of which he is still notionally the head. When it sits, the issue for the Appeal Court is essentially a narrow one: whether an impeachment inquiry must precede any trial where the intended accused is a judge.

If the outcome of the appeal is a go-ahead for the prosecution there would at least in theory be a possibility of acquittal and he must be considered innocent until the trial court rules otherwise. If, however, the court holds there must first be an impeachment inquiry this would almost certainly bring immediate suspension for its duration - and in the Byzantine world of Lesotho's politics, suspension from high office, regardless of the final outcome of an inquiry, means you are as good as dead.

For Motiso then, it's hard to see how he can do any better than his predecessor at staving off trouble in the form of a trial or an impeachment tribunal. Right now, 2016 seems to offer him - and the court that he heads - very little by way of comfort and joy.

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