Lesotho's courts on shaky ground
The judiciary, normally the most stable of the three arms of any government, has been deeply affected by continuing political conflict in Lesotho — and the recent elections in that country seem unlikely to improve matters.
A new president of Lesotho’s appeal court was appointed with effect from January 15 and was sworn in on January 27. But Kananelo Mosito’s appointment has been criticised on a number of grounds and has led to the resignation of all members of the appeal court.
Mosito’s selection was pushed through by Tom Thabane, then prime minister, just weeks before the February?28 elections.
This is despite an all-party election pledge not to take actions that would undermine the country’s precarious pre-poll stability and the stability of state institutions in particular.
The pledge specifically named appointments and removals of key officials as out of order.
In a strong reaction to Mosito’s appointment the country’s attorney general, normally the government’s chief legal adviser and who litigates on behalf of the government, brought an unprecedented high court challenge last month against King Letsie III — Lesotho is a constitutional monarchy — Thabane and the minister of law, justice and constitutional services. The attorney general, Tsokolo Makhethe, argued that Mosito’s appointment was irregular and invalid.
Three South African judges seconded to Lesotho heard the case and commented: “The matter is certainly unprecedented in that the attorney general is litigating against the constitutional monarch … and his government. It was brought amid a looming election electrified with political tension.”
Makhethe launched the case without authorisation by the government but, as he saw it, by the authority and functions of his office. He argued that the fact that the auditor general was the government’s legal adviser did not bar him from acting against the government in a matter such as this.
His passionate argument didn’t ultimately help and the high court found that the government had not breached the law with the appointment.
The court added, however: “The applicant acted courageously when he brought this application. It is clear that he had no regard for the consequences of his action because he genuinely, albeit mistakenly, believed that he is doing the right thing.”
The good news for Makhethe was that the court did not award costs against him, saying that he had raised “important constitutional issues”.
But legal or not, Mosito’s appointment hasn’t been universally -welcomed in the legal and political establishment.
It emerged from the auditor general’s challenge to Mosito’s appointment that the acting head of the appeal court, retired South African Judge Douglas Scott, had been offered the job — and had accepted it. Then, without informing Scott, Thabane offered it to Mosito.
Scott said this was in effect a vote of no confidence in him and he resigned, along with other South African judges who serve on Lesotho’s appeal court. Needless to say, they were not at Mosito’s swearing-in.
Five prominent members of the legal profession had strongly criticised Thabane for making such a significant appointment when he was merely caretaking for the government. These five were absent from the official event.
Makhethe was also missing, as was the outgoing deputy prime minister, Mothetjoa Metsing. That’s to be expected. Metsing was involved in controversy around an alleged coup attempt that contributed to Lesotho holding an early national election.
Thabane has not been returned to power though his party dramatically increased its seats in Parliament. Because no party won an outright majority a new coalition government has been formed, from which he is excluded.
Metsing, however, stays on as deputy prime minister, and he’s clearly not pleased with the appointment of Mosito.
Another key figure absent from Mosito’s swearing-in was the director of public prosecutions, Leaba Thetsane, according to Lesotho media reports. He too has an axe to grind with the outgoing prime minister: Thabane tried to force him out of office last year, saying he was obliged to retire at 55. Thetsane said he was entitled to stay until 60.
Thetsane challenged Thabane’s decision in the high court and lost. But a subsequent appeal court decision in his favour last November declared Thabane’s efforts to get rid of him unconstitutional, and Thetsane continues in office as director of public prosecutions.
Thabane also tried to get rid of Makhethe on the same grounds, provoking another high-profile court challenge by the auditor general, but after Thetsane won his appeal the attorney general has continued in office.
It’s worth noting here that Mosito, the new head of the appeal court, acted for Thabane against both the director of public prosecutions and the attorney general in the former prime minister’s bid to get rid of the two top justice officials. This may have been part of the reason why the five senior lawyers who criticised Mosito’s appointment commented that, given the facts surrounding the appointment, it seemed to be “a means of patronage”.
They added that there was a perception that the “powers that be” were trying to “capture key institutions of state”, and that Mosito was appointed by a “caretaker administration” following the dissolution of Parliament. “The current government is transitional and should not be making key appointments.”
It’s not clear how Mosito plans to populate the appeal court bench, which should sit in two sessions annually, April and October. Speaking at the start of the court year last month the chief justice, Nthomeng Majara, bemoaned the “serious shortage of judges” in Lesotho’s high court, saying this had been worsened by several recent retirements.
All these interrelated problems must be seen against the backdrop of earlier problems in the judiciary. Nine months ago the former head of the appeal court, Michael Ramodibedi, left the bench — and Lesotho — when it became clear he could not prevent impeachment inquiries into allegations of insurance fraud.
Before his departure to Swaziland, Ramodibedi was involved in high- visibility conflict over the question of precedence with the chief justice at the time, Mahapela Lehohla. The chief justice stepped down, apparently to allow the issue of precedence to be resolved. Majara, Lesotho’s first black woman chief justice, took up the position the position in August last year.