Fired Attorney General (AG) Advocate Haae Phoofolo wants his job back.
He on Tuesday filed an urgent High Court application to try and nullify Prime Minister Moeketsi Majoro's decision to effectively fire him by ordering him to go on "terminal leave" pending the expiry of his contract in February 2021. The leave was with effect from Monday 14 September 2020.
In his 14 September 2020 letter to Adv Phoofolo, Dr Majoro said it was necessary for the former to go on terminal leave ahead of his departure to facilitate the search for his successor.
However, well-placed government sources said Dr Majoro had fired the AG under pressure from the national executive committee (NEC) of his All Basotho Convention (ABC). The NEC considered the 73-year-old Adv Phoofolo old and incompetent. It was also angered that he and Acting Chief Justice 'Maseforo Mahase sat on 20 August 2020 in their capacity as members of the Judicial Service Commission (JSC) and recommended the appointment of five new judges.
The recommendations torched a storm with ABC deputy leader and Law and Justice Minister, Professor Nqosa Mahao, condemning them. The minister said the recommendations had been done in "secret" without a requisite JSC quorum and in violation of a moratorium on the appointment of judges until the completion of SADC recommended multi-sectoral reforms.
This has been alluded to by Adv Phoofolo in his court papers. He accuses Dr Majoro of pandering to the whims of the ABC's powerful NEC to sack him.
A day after sending Adv Phoofolo on terminal leave, Dr Majoro advised King Letsie III to appoint the Deputy Attorney General, Tšebang Putsoane, as the acting AG.
But in his Tuesday application, Adv Phoofolo asked the High Court to restore him to his post and revoke the appointment of Adv Putsoane as acting attorney general.
Before the case is finalised, Adv Phoofolo wants an interim order reinstating him to his post.
His application for interim relief will be argued today in the court.
The court application was bound to come after Adv Phoofolo's lawyers, Mei and Mei Attorneys, penned a strongly worded letter to Dr Majoro three days after he was sent packing.
In their 17 September 2020 letter to Dr Majoro, Adv Phoofolo's lawyers said his dismissal and the subsequent attempts to replace him were illegal because only His Majesty is empowered by the constitution to suspend or remove him from office.
In his application, Adv Phoofolo argues that Dr Majoro has no powers to suspend or place him on terminal leave as that power belongs only to the King.
He argues that the premier can only advise the King to appoint someone as substantive or acting attorney general.
He further argues that Dr Majoro did not abide by the provisions of section 140 of the constitution when he placed him on terminal leave last month.
"The Prime Minister has no power to suspend or place me on terminal leave. The provisions of section 140 of the constitution were not followed," Adv Phoofolo states in his court papers.
He argues that section 140 of the constitution states that a person can be removed from the office of the attorney general on account of old age, misconduct and infirmity of the body or mind which prevent him from discharging his duties.
"I submit that I am not in a position where it can be said on any basis recognisable in law that I am unable to exercise the functions of the office of Attorney General. I am not sick in the sense that I do not have infirmity of mind. I am not under impeachment," Adv Phoofolo argues.
He said the only reason he had been removed was because Dr Majoro had merely bowed to the demands of members of his own ABC's NEC who wanted him out.
He even quotes this publication's stories about the ABC's NEC meeting last month where it was resolved to petition Dr Majoro to fire him and Justice Mahase. At the time, the ABC secretary general Lebohang Hlaele, told this publication that they wanted Adv Phoofolo and Justice Mahase out because they "clandestinely" met as the JSC and recommended the appointment of five people including Adv Putsoane as High Court judges.
Prof Mahao was also livid with the duo for not informing him as the responsible minister about their 20 August 2020 meeting where they recommended Adv Putsoane and lawyers, Adv Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha for appointment as High Court judges.
But the King is said to have declined to appoint them on the grounds that Adv Phoofolo and Justice Mahase could not just sit on their own and make recommendations on such a "weighty matter" without the input of other JSC members.
In his court papers, Adv Phoofolo states that "the main reason for my removal is to align the office of the attorney general to the ambitions of the new government (ABC-DC led governing coalition)".
"I submit that I was never heard in relation to the ultra vires (illegal) decision of the Prime Minister to order me to proceed on terminal leave. I would have advised the Prime Minister that his powers are limited to recommending such to the King for the King to decide, not to usurp the King's functions.
"I submit that the Prime Minister informed me of the ambitions of the new coalition government...
"I must indicate that it has been recorded and quoted verbatim from the Lesotho Times newspaper of 17 September 2020 that the national executive committee of the ABC met on the 8th of September 2020 and demanded that Advocate Phoofolo and Acting Chief Justice Mahase be fired.
"I know that the ABC NEC was pressing for my removal from office because they were not happy with some of the opinions or advices that I have provided to government because those advices were having the effect of paralysing their political agenda or the issues pertaining to good governance and rule of law.
"An example which quickly comes to mind was my opinion against the promulgation of the Constitutional Amendment relating to the creation of a new government and the appointment of a new Prime Minister without a vote by members of parliament. I remember distinctly one member of the ABC's NEC calling me and criticising me vehemently for my stance.
"Another instance which caused immense anger to the NEC was when I opposed an application (by Mr Hlaele) for the impeachment of the ACJ Mahase from office (in 2018). My ground of opposition being that such an NEC member did not have the locus standi (legal standing) to make such an application. No wonder the NEC has lumped the Acting Chief Justice together with myself as possible candidates for removal from our respective offices.
"It follows that I was removed from office a few days thereafter. This public record (in the Lesotho Times) has never been contravened by the Prime Minister or the NEC of the party. It was not the Prime Minister's intention to have me "sacked" as the front-page news of the Lesotho Times newspaper reported. It will be seen that the secretary general of the ABC is quoted as having said he had recommended the ouster of Adv Phoofolo and ACJ Mahase," Adv Phoofolo states.
He defends his and Justice Mahase's conduct, saying the decision to appoint new judges "was one that had to be taken at some point because there is a dire need of judges".
"I believe we need no less than 10 judges to put the High Court back in full swing. As we speak the Commercial Court is not manned by even a single judge. I just want to pose a question.
"If I had told the justice minister in advance and immediately after the JSC meeting that we were going to deal with the appointment of judges, what would he do about that knowledge," asked Adv Phoofolo. The JSC has steadfastly insisted that it is not under any obligation to inform the government when it meets to recommend the appointment of judges.
He urges the court to urgently hear his case and grant his prayers allegedly because the premier's decision to send him on terminal leave "has an effect of casting stigma on me relating to both my social and personal standing".
"The prejudice I suffer is that acts meted against me bring into question my integrity, reputation and dignity in such a manner that my being "sacked" has attracted media attention and thus affected my standing as a person before my colleagues in the legal profession and the community.
"I submit therefore that I have made out a case for relief for we have no other remedy save to approach this Honourable Court in the manner that we have done," Adv Phoofolo states.