…cherry picked for prosecution in violation of his rights
Pascalinah Kabi
JUSTICE Kananelo Mosito was treated unfairly and unjustly through the selective application of tax laws to target him and disqualify him from holding judicial office, a Court of Appeal judge has declared.
Justice Phillips Musonda said Justice Mosito had been cherry picked for prosecution yet the crimes he is alleged to have committed had also been done by many others. This selective application of the law to target an individual violated his constitutional rights.
Justice Musonda made these bold remarks during exchanges with lawyers in a case in which Justice Mosito is appealing against a Constitutional Court judgment which set aside his August 2017 re-appointment to head the Court of Appeal.
Judge Musonda, the presiding judge in Justice Mosito’s appeal, said the tax evasion charges that formed the basis of the original impeachment of Justice Mosito were discriminatory and violated his rights.
Justice Musonda said Judge Mosito was treated unfairly as even some of the lawyers who challenged his reappointment to head the apex court had similarly failed to file their tax returns on time. The zeal with which authorities had scrounged for tax laws to apply against only Judge Mosito thus appeared discriminatory.
Justice Musonda is presiding over the case in which Justice Mosito is challenging the Constitutional Court’s February 2018 judgement that set aside his reappointment to head the apex court.
Justice Mosito will know his fate tomorrow after Justice Musonda’s announcement that a verdict will be delivered on Friday at 9:30 am by the five-member Court of Appeal panel of judges.
Apart from Justice Musonda who is from Zambia, the other judges on the panel are ‘Maseshophe Hlajoane and Moroke Mokhesi (both from Lesotho), November Tafuma Mtshiya (Zimbabwe) and John Zwibili Mosojane (Botswana).
Justice Mosito’s long-awaited appeal was finally heard on Tuesday following a recent ruling by another Court of Appeal judge, Moses Chinhengo (Zimbabwe), that the case should be set and heard within 20 court days. Justice Chinhengo delivered the judgement after the Law Society of Lesotho petitioned the apex court for an order that the long-drawn case be set and heard within 14 days.
If the other judges on the panel will agree with presiding judge Musonda’s sentiments, then Judge Mosito is now finally set for his second return to lead the judiciary.
Dr Mosito was first appointed to the top job during the first government of Prime Minister Thomas Thabane in January 2015. He was reappointed to the same post on 1 August 2017 after Dr Thabane returned to power in the aftermath of the June 2017 snap national elections.
Justice Mosito’s reappointment came after he had been forced to resign in the wake of the establishment of a tribunal in 2016 by former Prime Minister Pakalitha Mosisili to determine his fitness to hold office over allegations that he had evaded paying taxes.
The tribunal had recommended his impeachment on the basis that he had failed to honour his tax obligations and that he acted unlawfully in investigating his fellow judges to establish if they had also paid their taxes as he sought information to advance his case.
On 13 February this year, his reappointment was declared null and void by the Constitutional Court on the grounds that he “is not fit and proper person” for the job because he had been impeached by the tribunal.
The February ruling followed a court application by four lawyers – King’s Counsels Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika. However, Justice Mosito did not take the decision lying down and on 19 February 2018, he and his co-respondents, including Dr Thabane lodged a notice of appeal before the Court of Appeal. In his appeal notice, Justice Mosito argued that the Constitutional Court erred and misdirected itself in finding in favour of the four lawyers.
Among other things, Justice Mosito argued that the Constitutional Court was wrong to conclude that the tribunal had found him unfit to hold office. He said the tribunal findings were of no consequence as they were made after he had already resigned from his position as Court of Appeal President on 13 December 2016.
And on Tuesday, Justice Musonda said the tax evasion charges against Justice Mosito were discriminatory because some of the lawyers challenging his reappointment had also failed to file their tax returns on time.
“The charges brought against the first appellant (Justice Mosito) were discriminatory,” Justice Musonda said, adding, “Some of the lawyers in this case have also failed to file their tax returns”.
“The first appellant failed to file tax returns when he was still a private lawyer not when he was a judge.
“Judges and lawyers are ministers in the temple of justice and must therefore administer justice in discriminatory cases (like in the discrimination of Mosito).
“Wouldn’t it be proper to say that these (tax evasion) charges were discriminatory and that the first appellant was cherry picked? Would you tell me if these charges were brought with a pure conscience,” Justice Musonda asked the defendants’ lawyer, Roland Suh, in front of a packed court room.
Adv Suh insisted that Justice Mosito was not fit to be a judge. He said there was no indication that Dr Thabane had applied his mind to the tribunal report. Any person who had read the report would know that Justice Mosito was not fit to be a judge, he said.
Justice Musonda however, said that the tribunal and the Constitutional Court should have had a balanced view on the charges brought against Justice Mosito. Both institutions should have sought to vindicate Justice Mosito’s fundamental rights when it became clear that he was being cherry picked for prosecution among his fellow colleagues.
“What is your view, did the charges against the appellant violate Section 19 of the constitution?” Justice Musonda asked Adv Suh.
Section 19 of the constitution states that “every person shall be entitled to equality before the law and to the equal protection of the law”.
Last year in October, the government cleared the way for Justice Mosito’s reappointment by withdrawing the tax evasion charges against him.
The Minister of Law, Constitutional Affairs and Human Rights, Lebohang Hlaele confirmed at the time that a decision had been made to withdraw the tax evasion case.
The withdrawal of the case against Justice Mosito coincided with an agreement between his lawyers and the office of the Attorney General to quash the findings of the tribunal that investigated him and advised His Majesty King Letsie III to remove Justice Mosito from the apex court’s presidency in 2016.
Lawyers from both sides prepared a deed of settlement in the matter in which they agreed to quash the findings of the tribunal and effectively withdraw the tax charges against Justice Mosito.
But despite the withdrawal of the tax evasion charges and the High Court’s endorsement of the deed of settlement to quash the findings of the tribunal by the High Court, the Constitutional Court eventually ruled against the reappointment of Justice Mosito in February this year.
Justice Mosojane said it was judicial misconduct for courts of law to ignore their own court orders as the Constitutional Court had done when it ignored the High Court order endorsing the deed of settlement which quashed the findings of the tribunal.
He said all orders and judgements of the courts must be given full-faith and be obeyed by everyone, even by those who did not agree with such court orders.
“Would you be happy as a lawyer if a Prime Minister does not obey a court order like the court a quo (the Constitutional Court judgement which ignored the deed of settlement endorsed by the High Court) did,” Justice Mosojane asked rhetorically.
Advocate Suh replied by saying that “at the time the decision was made to remove (Judge Robert) Nugent and appoint the appellant (Justice Mosito) to the same position, those court orders did not exist, what existed was a three-judge tribunal’s detailed report that the appellant was unfit to hold office”.
“There is a debate about the effect of the resignation of the first appellant (Justice Mosito to prevent the King from acting on the recommendations of the tribunal that had been set up to impeach him) but the real question is did that resignation have any impact on the findings of the tribunal?
“Do the findings simply evaporate once the (Justice Mosito’s) resignation was made? I must submit that they do not,” Adv Suh argued.
The Tuesday proceedings began with Justice Musonda telling lawyers that they had already read all the court papers, including the Constitutional Court judgement that nullified Justice Mosito’s reappointment. He gave lawyers for both sides a chance to plead their cases further.
Advocate Tekane Maqakachane who represented the government was the first to take the stand and was cut short by Justice Musonda who ordered him to refrain from raising issues that had already been dealt with in the documents filled before the courts. Advocate Maqakachane, who referred to the four lawyers challenging Justice Mosito’s reappointment as “busy bodies,” was only given five minutes to wrap up his case.
Approximately 30 minutes before the court adjourned for lunch, Adv Suh took the stand and argued that the quartet of lawyers pursuing Judge Mosito should not be referred to as “busy bodies” because they were faced with a “difficult situation” when they approached the courts in February 2018.
Shortly afterwards, Justice Mokhesi asked Adv Suh whether or not the Constitutional Court case against Justice Mosito was just academic because Justice Nugent had already resigned from the position when Justice Mosito was reappointed.
Adv Suh replied by saying, “I just have to do what I have to do here”- a response that drew raucous laughter from the packed courtroom.
The five justices took turns to bombard Adv Suh with questions much to the delight of the court audience.
At the end of the proceedings, Justice Musonda said “you have all argued your case with utmost conviction”.
“Mr Suh I know you tried you best and we will deliver judgement and all necessary orders on Friday at 9:30 am,” Justice Musonda said.
Whichever way tomorrow’s verdict goes, it will go a long way in facilitating the appointment of a president of the apex court and thus pave the way for it to resume its sittings and clear the backlog of cases that had piled up as a consequence.
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