Lesotho: Govt Plans to Impeach Attorney General Phoofolo

13 November 2020

The government has intensified its war with Attorney General Haae Phoofolo by threatening to impeach him over a host of issues including alleged incompetence and abuse of office.

Advocate Phoofolo is alleged to have abused his position by unprocedurally recruiting a female friend without following proper recruitment processes.

The government allegedly threatened to impeach Adv Phoofolo if he did not withdraw his High Court application challenging Prime Minister Moeketsi Majoro's decision to effectively fire him by sending him on terminal leave on 14 September 2020.

Adv Phoofolo has already scored a significant victory in his fight against the government after Justice Molefi Makara on 22 October 2020 granted him an interim order allowing him to return to office pending the finalisation of his application for a final order allowing him to remain in office until the expiry of his contract.

Justice Makara granted the order in response to Adv Phoofolo's application filed on 6 October 2020. Dr Majoro, King Letsie III, the Office of Attorney General and Acting Attorney General Tšebang Putsoane are first to fourth respondents respectively in the lawsuit.

Justice Makara also gave Dr Majoro until last Wednesday to "show cause", if any, why his decision to oust Adv Phoofolo should not be permanently stayed.

Dr Majoro has not complied with Justice Makara's directive. Instead the government is seeking an out of court settlement with Adv Phoofolo which will allow it to start searching for his replacement.

However, the two parties remain poles apart after Adv Phoofolo's lawyer, Adv Letuka Molati's 29 October 2020 meeting with Law and Justice Minister Professor Nqosa Mahao failed to yield an agreement for the attorney general to abandon his court application against Dr Majoro.

There was already bad blood between the two sides after Adv Phoofolo snubbed Prof Mahao's initial request for a meeting two days earlier on 27 October 2020.

His bone of contention is that he felt disrespected by Prof Mahao who addressed him as Mr Phoofolo instead of Advocate Phoofolo, King's Counsel (KC), in his letter requesting the meeting.

It is not clear whether or not Prof Mahao wrote a new "respectful" letter which led to the meeting between Prof Mahao and Adv Molati last Thursday.

The meeting was held at Prof Mahao's Government Complex offices. Government lawyer, Adv Tekane Maqakachane, also attended.

Although both Adv Phoofolo and Prof Mahao were unwilling to shed light on the meeting, authoritative sources said the attorney-general was told to withdraw his court application or risk being hauled before a tribunal on charges of incompetence and abuse of office.

The sources said to demonstrate that it means business, the government on Monday withdrew the soldiers who have been guarding Adv Phoofolo in his capacity as a very important person (VIP).

Government Secretary, Lerotholi Pheko, this week confirmed the withdrawal of the soldiers. He however, said they were withdrawn because Adv Phoofolo was not entitled to such security. He said it had only been given to him during the tenure of the previous Thomas Thabane administration when he felt threatened by unnamed people who were not happy with his legal opinions.

"Security is not part of an attorney general's contractual entitlements but he (Adv Phoofolo) was provided with security during the later days of the previous government when he felt insecure due to utterances of people who were unhappy with his legal opinions. But that situation does not exist anymore," Mr Pheko said.

However, the sources are adamant the security details were withdrawn to demonstrate the government's seriousness about taking stern measures against Adv Phoofolo should he continue with his case.

"Ntate Mahao asked Ntate Phoofolo to withdraw his court case against the Prime Minister to allow for negotiations between the two parties to wrap up the matter of the attorney general's departure. But Ntate Phoofolo is adamant that he wants to see the case through.

"Government wants the matter to be settled out of court. Ntate Mahao made it clear that he wants the two parties to amicably solve the issue but Ntate Phoofolo seems not interested.

"This has angered the government. Last Thursday Ntate Mahao did not mince his words during his meeting with Ntate AG's lawyer. He made it clear that if Ntate AG does not withdraw his court application, he will leave government with no choice but to charge him for incompetence and abuse of office," a source said.

Another source alleged that Adv Phoofolo stands accused of hiring an unnamed female friend to work in his office without following proper recruitment processes. Government is willing to ignore the alleged indiscretion on condition Adv Phoofolo agrees to abandon his court application, the source said.

"Prof Mahao said if he (Adv Phoofolo) proceeds with his case, government will not oppose him. This will allow him to easily win the case and be reinstated as attorney general. But once he returns to office, government will establish a tribunal to charge him (Phoofolo) for incompetence and abuse of office in connection with the hiring of his female friend without following proper procedures," the source said.

Asked to comment this week, Prof Mahao initially said, "no comment because we cannot be discussing office business with the media".

He however, confirmed that the two parties met last Thursday to discuss Adv Phoofolo's concerns over Dr Majoro's decision to send him on terminal leave pending the expiry of his contract in February next year.

"We met with his lawyer. Some talks ensued and we are waiting for feedback on the matter. I will not divulge what was discussed in that meeting. We cannot discuss office business with the media," Prof Mahao said.

Pressed to respond to allegations that the government had demanded that Adv Phoofolo abandons his court application, Prof Mahao said "I don't know the accuracy of that. I am not sure about that".

"My understanding is that the two parties sat down to allow the government to fully understand what his (Phoofolo) problem is concerning this arrangement which the Prime Minister made for him. The PM said to him, stay at home while enjoying all the benefits of your contract until it ends.

"We wanted to hear from him about that and establish what his problem is. What would you do if your boss told you to stay at home while still enjoying every benefit for being employed? Ntate Phoofolo is not happy with that arrangement yet we know very well that most of the time he is not in office and not delivering on his mandate," Prof Mahao said.

He however, unwittingly let slip that government wanted Adv Phoofolo to abandon his case, warning that the latter would one day rue his decision to disregard government's call for him to abandon the case.

"He can go ahead with the case. If the negotiations do not yield a solution to this problem, he can go ahead with the case. You know the Sesotho proverb that lipele li na le baji (meaning: one will live to regret to their decisions). He will be sorry that he- a lawyer- refused a generous deal from government. He will live to regret it," Prof Mahao said.

The talks between the two parties were held a month after Dr Majoro told Adv Phoofolo's former legal representatives, Mei & Mei Attorneys, that the government and Adv Phoofolo had agreed to go their separate ways.

This after the lawyers had written to the premier saying his move to send Adv Phoofolo on terminal leave portrayed the attorney general in a negative light. Adv Phoofolo has himself said his enforced departure humiliated him and tainted his legacy.

"I have noted your letter dated 17 September 2020 and the contents therein. Please note that I discussed the matter with your client and agreed on the purpose of the separation. There is no intention to cast negative aspersions on the person of Advocate Phoofolo and any such would have been unfortunate and any such impression emanating from my letter is regretted," Dr Majoro states in his 1 October 2020 letter.

Adv Phoofolo this week said his lawyer had informed him of the government's demand for him to withdraw the case. He however, vowed not to give in to "blackmail" to withdraw the case.

"I heard about it from my lawyer. Ask him for further details.

"If the facts are as you put them (that government wants the court case withdrawn) then this is not a negotiation but blackmail. And I am not going to bow down to blackmail or abuse of state institutions by people who rule by instilling fear in others.

"The issue is even more serious when the weapon used against me are allegations which include the assassination of my character. My position is simple. The case that is before the court must be completed. As for buying my exit by making me appear to be a guilty person who has to beg for mercy, I won't do that," Adv Phoofolo said.

Asked about the claims that he was incompetent, Adv Phoofolo quipped, "incompetent by whose standards I wonder. If it is by the standards of the people who have been singing this song about me in media reports, then I won't respond".

He also confirmed the government's withdrawal of his security but denied that he had ever agreed with Dr Majoro about his departure from office.

"It is true that my security details were withdrawn but as to why, I have no idea. I asked the messenger who delivered the news and he said he didn't know.

"I have said over and over again that the Prime Minister and I never reached any agreement about my departure. I was with the PM some time ago in his office on a different matter. When I stood up to leave, he asked me to wait as he had another issue he wanted to put forward for my consideration. The PM told me his idea and views concerning how he wants to restructure the AG's office going forward.

"To achieve his goals, he asked me to go on leave. I told him that although I understood his intentions, I did not agree with his position. I said because the matter was of immense importance as it concerned my future, I would need to first discuss it with my family and lawyer.

"I requested him to put what he had said in writing and he agreed. I informed my wife and attorney about this conversation. We all agreed that we should await a formal text from the PM.

"I was surprised a week later to receive the PM's letter which purported to repeat the terms of an agreement which we never reached. The fact that the alleged agreement for my departure was with immediate effect added to my shock.

"If it is said that I agreed with the PM, then the suggestion is that I agreed to an illegality because in law there is nothing called forced leave. I didn't agree and I couldn't have stabbed myself in the back only to cry foul afterwards," Adv Phoofolo said.

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