lesothoanalysis

You must first enable the government to control the governed; and in the next place, oblige it to control itself.― James Madison, The Federalist Papers

Overview
The relationship between the government and the people can be as simple as Madison’s, one of the founders of the United States Constitution, put it in the The Federalist Papers. The principle is simple. The people give the government control over themselves and the government learns to control itself. It is not about the legal constraints that may or may not exist. It is about knowing what is right and what is wrong. The relations between the government and the people in the final analysis are regulated by moral ethical issues and self-regulation. Let no one say,” I can do it.” It is about whether it should be done and whether it is the right thing to do.

The June 2017 elections in Lesotho removed a government which had outlived its usefulness as a result of lack of accountability and also rampant corruption. The expectations of those like me who voted were high and we do not want to go back to the trenches with the new government. But the new government must at the same time show that it respects the people. It is not enough to say that the people have conferred power to the government; such a government in Madison’s terms is obliged to control itself. Let us not hear any of the government surrogates uttering the usual mumbo jumbo that it is the prerogative of the Minister or the Prime Minister to do certain things. We have to see the difference between what we rejected and what we voted for. Prerogatives are not a licence to do whatever one wants. They are expected to be exercised with diligence.

Let us also not hear the surrogates telling us about the honeymoon period! Only human beings deserve such. Institutions need no respite from public pressure and are not entitled to a honeymoon. The people gave the government power to rule, but not to disrespect them. The announcement by the Acting Government Secretary to the effect that “….the Office of the Right Honourable the Prime Minister has appointed Mr Yan Xie as the Lesotho Head of Special Projects and Prime Minister’s Special Envoy and Trade Advisor on China-Asia Trade Network “brought a chill down my spine. At first I thought it was fake news, but soon realised that it was not. Our government had acted in a manner that brings shame to us as citizens.

In every country there are places and institutions in government which are restricted or protected from everyday interactions and people. The office of the Prime Minister is one such place. In all the countries of the world, offices like those are sensitive and places of pride. Those are places where it would not be acceptable to find foreign nationals, heading strategic organs. I already hear, the usual mumbo jumbo that Xie is a naturalised Mosotho. I have lived through all post colonial governments in Lesotho and have witnessed with horror how those naturalisations or outright sale of Lesotho passports have taken place. This is how, a large number of countries which used to allow visa free travel for Lesotho citizens withdrew those privileges. I’m not impressed. Xie may have been naturalised, but it is well-known that he is not clean. Xie is probably the biggest corruptor in Lesotho.

I will therefore not waste my time trying to find out whether he got Lesotho citizenship legitimately or otherwise. Those who the time and energy may follow us other things in Australia before they howl, oh he is a citizen. I’m reminded that in South Africa close by we have some corruptors who have also acquired South African citizenship under opaque circumstances. We are now witnessing a clamour for a judicial inquiry whether they have captured the state. Issues about citizenship and loyalty to the state are too complex to be discussed in a flippant manner that government surrogates would like us to do. In some countries issues of nationality and citizenship are taken so seriously that there are stipulations on what a naturalised citizen can and cannot do. The Australian cabinet crisis shows the sensitive nature of citizenship.

More importantly as already alluded to above, Xie is a well known personality in Lesotho. His business empire is in retail, construction, and pharmaceutical and the meat industry. Except in retail and construction, his businesses are takeovers under opaque circumstances of government businesses. But also significant is that, he tends to hide his real ownership of most of those businesses, claiming that he finances them but does not own them. Fortunately Lesotho Revenue Authority (LRA) has not bought into his claims. The question therefore is who exactly is Yan Xie? We have to explore whether Xie has the necessary credibility to Head a unit in the Prime Minister’s Office, let alone be a “..Prime Minister’s Special envoy…”

Yan Xie’s world
Yan Xie has been in business in Lesotho for a long time now. He is generally regarded as the leader of what has come to be called the Shanghai group of Chinese in Lesotho who run all types of businesses from cafes to construction. They generally are under his wing. Xie represents them and often collects donations from them for distribution when need arises. Xie knows and sponsors most politicians who matter in Lesotho. It was well known that since 2006 his Jackpot Supermarket was a shop of choice for several ministers, who did not have to pay for their routine grocery requirements. In return Xie is well looked after with government tenders and acquisition of government businesses whenever they go for sale. It is through his connections that he has been able to acquire the Lesotho Pharmaceutical Company in Mafeteng and Meraka Lesotho Abattoir among others. In all those acquisitions, Xie does not tender, but charms his way to politicians whom he sponsors in any case.

Xie acquired his citizenship on 22/12/2006 in terms of Certificate No: NAT.23/2006. There is no need for now to spell out the background to his naturalisation. But it is important to note that at that time up to the present, Xie has brought under his wing politicians of all stripes and used his Jackpot Supermarket before it was reconstituted, as a cash cow for several ministers. In addition, he has dished out money and other favours to a long list of politicians including funding their election campaigns. Being a benefactor of the powerful, Xie had become untouchable until LRA summoned the courage to investigate him culminating in his 2011 debacle where several of his businesses were raided and closed for some time for suspicion of fraud.

In reports at the time Lesotho Revenue Authority (LRA) suspected that Xie had been understating tax obligations for Jackpot Supermarket, his other retail shops and the two construction companies. He was also suspected of making false customs declarations for goods that his businesses imported from South Africa. Overall LRA suspected that he owed over M20 million in taxes for submitting documents which understated his income; he also understated his customs funds obligations, and generally did not run a clean business. With the assistance of the police, most of his known businesses were raided and closed. The benefactors of Xie were up in arms, but LRA stood its ground.

Two things are important here:
a)all known businesses of Xie were closed while LRA went on with its investigations. It is not known whether and how much Xie settled his obligations since LRA does not disclose such issues about its clients unless there is a court order. But what is known is that Xie liquidated his businesses and months later resumed business under new companies. The old companies which owed LRA no longer existed. As a result of the closure and the liquidation of those companies a number of local companies which were owed money had no alternative but to write-off substantial amounts of moneys owed. One company whose records I have seen wrote off almost M500, 000 of the debts Xie’s company owed.
b) Xie also runs a lot of companies as a silent or a hidden partner. For example he ran a company called Jackpot Wholesalers which was under a different organisation as opposed to Jackpot Supermarket. He claimed then that he was not the owner but the financier of that wholesale. It was closed, but I have no confirmation that it was liquidated like the other companies. He has a string of such companies.

The picture which emerges out of Xie’s dealings is of an extremely devious person whose business modus operandi is one of a corruptor as we deal with below. Xie doesn’t care about those businesses as long as they are a front and a means through which he stays in the front seat for government tenders. He is a ruthless tenderpreneur.

As a result of his connections, Xie has acquired several government linked businesses as already mentioned. But more significant, is that in most of the businesses he has acquired are run by some of the people who gave him the tenders without tendering. For now I will resist the temptation to mention them by name, but should the need arise, I’m more than willing to expose the scams our new envoy is engaged in. He has also won a large number of government construction businesses from Metolong to closer home in Maseru. I now know that he is already circling around to be awarded a contract to complete a new State House without tender. Xie has no shame!

Whenever he is assured of winning a government tender without going through the normal process, he is willing to do so. But quite often he uses his surrogates to tender while he lobbies for them in government. As soon as they win the tender Xie either takes over directly by buying them off or uses one of his well known tricks of saying that he finances that business. This is exactly what happened recently in the scandalous police uniform tender whereby Xie’s surrogates were awarded a tender illegitimately and then he won the trophy by buying out the main shareholder and Director of the company. Without doing anything but use his influence he had a M7, 000,000 police uniform tender. The matter is still running its course in the lethargic Lesotho courts but by the time judgement is issued, Xie’s time as a supplier of police uniforms will probably have expired. He will have fulfilled the terms of the contract and those who challenged will probably win a Pyrrhic victory. If they ultimately win several years down the line, the best they can get is to sue for compensation.

An interesting thing here is that Xie is an ever smiling character but he has around him a former police officer who does his other dirty work. People know that this is the guy who navigates Xie from falling in the hands of the law enforcement officers. If in Lesotho, we can have a person charged for delaying to register with the tax authorities, but it only remains with LRA to wrestle him and no charges follow you should know that something is wrong. Both his connections and the connections of his police friend matter!
The question therefore is whether Xie is fit for office? Is he a fit and proper person to be appointed to such an important position?

Why Yan Xie must go!
Anybody who understands global developments knows that China is an evolving economic superpower. Over and above the setting up of BRICS funding mechanisms, China has established and committed billions of dollars in development finance for Africa over the past decade as Beijing seeks to secure its political and economic clout on the continent. Any country in the world, developed or developing is scrambling to have a share in development finance and trade with this emerging giant. Dealing with this giant requires an active engagement and also sensible strategies lest one chases a passing chimera. This is why most countries, have established specific Councils which are able to strategies on how to take advantage of the potential development and trade bonanza. It is not just about grabbing anybody who is from China and assigning him to head special projects and become an envoy. More critically it is about identifying knowledgeable and credible people who could advance our interests as a country. I fear that the global business community will see us as a captured state with a corruptor as our envoy.
Xie is far from such a person. The only skill he has is as a corruptor not as a business guru. Let us just consider what he has done with “these gifts” of the businesses he has acquired as a first step. None of those businesses have prospered. He, for all intents and purposes runs a medium size supermarket and those businesses he has been gifted by successive regimes in Lesotho. The rest of his empire is dependent on government tenders.
In most countries, for people to be eligible to key positions, they require that an ethics test be passed. This is a test which attempts to find out whether the person is a fit and proper one to be entrusted with key responsibilities. Unfortunately in Lesotho, our system does not require people to be evaluated on their ethically propriety. Indeed, if Xie was evaluated, on the basis of his business dealings alone, he would have been barred from assuming any public office. He has sponsored key people in the old regime and he sponsors others in the present regime. For now, I will not release the nature and extent of the sponsorship, but am horrified how people are indebted to him.

This is why I call upon the government to release Xie from his appointment in order not to continue to embarrass us. We have gone through too much to be settled with a corruptor. To both the old regime and the present one, I wish them silence. The old regime doesn’t have to do anything but keep quiet about Xie. For the new regime, we only require them to release Xie from his post. I don’t think it will be good for anybody if we were to engage in a damaging debate about the extent of Xie’s control over them. This government needs to be protected from itself. The opposition is too weak to pose any danger to this government, but the recklessness of this government on this matter will ensure that it does not last five years. Let me repeat Xie’s sponsorship of key politicians in Lesotho is extensive and those who want to challenge me on this are advised to seat back and relax lest all is revealed. Xie must go!
MMS/21/08/2017

It took more than fifteen months of dodging and ducking by the police to hide what had happened to their colleague, Mokalekale Khetheng who had disappeared in their hands; it took about fifteen months for the Mosisili regime to devise and attempt to hide the well-known secret of the murder of Khetheng; it took more than twelve months for an urgent habeas corpus application in the High Court to be finalised (today 14/08/2017 judgement is expected to be delivered in the High Court). But it took just two weeks for the new Acting Commissioner of Police to have suspects in the murder arrested, charged and the body of Khetheng exhumed. This is a sign that Lesotho’s criminal justice system is broken. It is however redeemable. The arrest of several senior police officers for murder is indicative that the cancer which was spreading within the police service can be stopped.

Of all the abhorrent things which happened in Lesotho since 2015 when the Mosisili regime took over, none was as fundamental in undermining the rule of law as the systematic dismantling of the police service and creating in its place a murderous militia made up of army, intelligence, and police officers. The establishment of a Joint Police and Army Unit signalled the beginning of the end of a professional police service which did not see civilians as enemies of the state. It has since emerged that both the National Intelligence Service agents and the police were now being trained on military intelligence as opposed to their traditional skills. I applaud the Acting Commissioner of Police for having dispensed with that a week after he took over.

The Khetheng case is one illustration of how far the rot had gone in turning a law enforcement organ into a criminal unit. Though some of the suspects in Khetheng’s kidnap and murder were generally senior officers, the bigger question will remain whether they were their own agents or whether they were under superior orders to murder Khetheng. For purposes of this article, we are trying to understand the modus operandi of this criminal syndicate. If those who committed crimes were willing idiots, the question will remain why the majority of untainted police officers became complicit? How can one explain the fact that it only came to the courage of one of the most junior policewoman, ‘Mabohlokoa Makotoko to break ranks thus providing a lead to the arrest of the syndicate? But more importantly, who is accountable for the existence and protection of this criminal gang which kidnapped, tortured, killed and hid Khetheng’s body for almost ten months? It is no use jailing the foot soldiers if the mastermind goes free!

The plot to kidnap Khetheng

March 26th 2016 is the day that Mokalekale Khetheng was arrested by four police officers while he was in a feast at Sebothoane, just outside Hlotse in Leribe where he was taken to. He was apparently out on bail for an alleged arson in Mokhotlong where he was based. His arrest from the beginning, as evidence emerged later, was not accidental. In two unrelated cases at the Lesotho High Court, the elements of the plot against Khetheng emerged. First was the application for a habeas corpus by Khetheng’s father which was launched in June 2016 after he received unsatisfactory response from Leribe police regarding the whereabouts of his missing son. The second case was an application in the High Court by Policewoman ‘Mabohlokoa Makotoko who was challenging her transfer from Hlotse Police Station to Tlalinyane police station after refusing to lie about the whereabouts of Khetheng.

Makotoko whose evidence became central to both cases in an affidavit revealed that she feared for her live, should she be transferred from her station where she is well-known and has insights into the disappearance of Khetheng. She suspected that she would be killed if she were to be transferred before the case of Khetheng has been finalised in the courts. This statement on its own was significant since it revealed that the police kill those who may reveal their evil deeds. Makotoko spelled out that it was generally understood, that Khetheng has been killed. She did not reveal the suspects, but by confronting Mofolo, Head of CID in Leribe, it was clear that she was pretty certain that Mofolo either killed Khetheng or handed him to those who killed him. Mofolo was handed both Khetheng and the handcuffs, and the latter was never seen alive thereafter. A trainee at Police Training College would have solved that case within weeks!
The plot to hide traces of him had been laid a long time before Khetheng was arrested. This is why police were instructed to arrest him but not bring him to the police station. In evidence in the High Court, policewoman Makotoko testified that their senior at Hlotse Police station, telephonically instructed them to move around with Khetheng after his arrest rather than to take him to the police cells. They did not do so since they were hungry and wanted to go for their lunch

She testified that after arresting Khetheng with three other police officers at Sebothoane on March 26, 2016 they brought him to their police station in Hlotse where they handed him to the then Inspector Mofolo who was heading the Leribe Criminal Investigation Division (CID).

She explained that when they were about to enter the police station gate, they found Inspector Mofolo already waiting for them by the gate. He asked them to hand to him the vehicle key and they left Khetheng with him while they took two other suspects they brought from Ha Khabo into the charge office. Makotoko further testified that Mofolo asked for a handcuff which she gave him and indicated and that was the last she saw Khetheng. The lead was clear. Mofolo was a key part of the plot to arrest Khetheng, and hide his whereabouts. He was apparently desperate that police records should not show that he ever arrived at the police station. Being head of the criminal investigation division in the district, Mofolo knew that the paper trail is an important part of investigations. His tactics and those of his accomplices, succeeded in warding off investigations on Khetheng’s whereabouts for over fifteen months. The attempt to hide their tracks might have succeeded but for the bravery of the two female police officers who refused to dishonor their badge .Their two male colleagues pathetically accepted lie for their seniors. With heads down after their arrest, they apparently have confessed that they lied under oath in the High Court.

When the plotters were now faced with an application for habeas corpus in the High Court, their well rehearsed strategy of obfuscation became clear. They would make bland denials and attempt to delay the case until; hopefully the Khetheng family gave up. It was a well-known strategy of government lawyers in the past few months to attempt to delay cases if they felt they were on flimsy ground. We therefore expected that they would attempt to block the habeas corpus application from speedily proceeding. It would be cases of the police are studying the matter; there was snow in the mountains where Khetheng used to work; or the Commissioner of police has been away. The funny thing about the snow issue in court was that Khetheng was arrested or kidnapped in Leribe not in Mokhotlong. The snow issue was clearly just to ensure that the case did not proceed speedily. Delaying cases is such a well-rehearsed strategy that I had dared one of the lawyers involved in the case after one postponement, that the case would be made to track until 2017. He did not believe me, but it did.

Over and above the usual delaying tactics, the police claimed that Khetheng had been dismissed for desertion. In an opposing affidavit, Officer Commanding Hlotse Police Station Superintendent Thabo Tšukulu alleged that Khetheng absconded from duty from 11 Mar2016 and never reported back to work. Whether he was still a serving police officer or not was irrelevant. The Khetheng family wanted his body to be produced by those who know where he was. While this did not really matter in a habeas corpus application, the police assertions were meant to justify why they had not launched an investigations on the disappearance of a serving police officer. He was no longer in the police service, he argued.

To confound this matter even further, the response of the Commissioner of Police, to the police Union was more astounding. In their Annual General Meeting, the Union wanted to know the fate of Khetheng. Rather than respond to the query, Molahlehi Letsoepa said the missing cop was not a member of LEPOSA and he could not comment on the matter as it was before the courts of law. This is startling! Whether Khetheng was a member of the Union or not is not relevant. A law enforcement officer under Letsoepa had disappeared but he felt that his best bet is to hide behind union membership. If he did not know more than he has been ready to talk about, why did Letsoepa attempt to transfer Makotoko and later fire her for insubordination? The investigations are likely to reveal more than what we presently know.

Torture, murder and hiding Khetheng’s corpse

The elaborate plan to hide circumstances surrounding Khetheng’s disappearance in Leribe have failed and the body which the family has identified as that of Khetheng is now under DNA checks. The matter which however has come to the fore as preliminary viewing of the body has revealed is that Khetheng was severely tortured and probably died of that or a suspected gunshot on the head. The post-mortem results will probably not be made available before the trial. But to the naked eye, Khetheng died a gruesome death. The murder trial will probably give an indication on how he died and what were the motives for such a gruesome death. This sadistic killing, by police on another is unbelievable even though it is true. The police had become sadistic killing machines!

It is not clear yet, where and how Khetheng was killed, but his body was dumped at or near a rural police station in Maseru, at least 120 km from where he was last seen in Leribe. The discovery of the body at Ha Mokhalinyane did not trigger any alarm bells since Khetheng’s disappearance had not been made known to police and the public. As fate had it, the scene was attended to by a professional policeman who was meticulous on records and details. This was to become crucial when the body was discovered where it was buried. Khetheng’s picture and his clothes were to be matched with the body and clothes in the grave. after exhumation. He was moved from ha Mokhanyane soon after he attended the corpse which was found around the police station Again as fate had it, the policeman who headed that Mokhalinyane Police station, was part of the five men team which is now conducting investigations on Khetheng’s disappearance. What was the plan to dispose of the body is also what has shown the hand of those who planned the killing.

After the body was found near ha Mokhalinyane Police Station, it was sent to the Lesotho Funeral Service mortuary at Ha ‘Majane and kept there for three months. The body was then moved to another Lesotho Funeral Service mortuary at Ha ‘Mant’sebo until it was finally moved to the Maseru mortuary a day before unknown corpses which had been there for more than two years were to be buried at Lepereng cemetery. All these movements could not have been made by the Leribe police since this area does not fall within their area of operation. It was all done by the C.I.D. personnel probably in Maseru Head Office.

Another puzzling thing about these movements of Khetheng’s body is that he had been dead less than two years, yet his body was tucked in with those of unknown people who had died more than two years. The complicity of some of the staff at Lesotho Funeral Service in this crime is obvious. If Khetheng’s body was not in Maseru at the time preparations for the burial of unknown corpses were being prepared for burial, how is it that the plaque with his details was already inscribed with those which had been in Maseru for over two years? As investigations proceed, I hope they will be able to provide clarity. The weekend three of those employees of Lesotho Funeral Service spent with the police, before they were released today should have provided indicators. of who was in charge of that operation .

There is a saying that those who live by the sword will die by the sword. As I recall two senior police officers, Mofolo and Tšukulu who had been rewarded with promotions after the grisly murder of Khetheng have now been charged with murder. It took them just one day in police custody to lead investigators to the place they had buried Khetheng. Knowing what they had done to Khetheng, they probably feared for the worst if they did not cooperate. Indeed, sources indicate that an even senior police officer has confessed to a magistrate about the killing of Khetheng. That indicates that there are some at the pinnacle of the police management who are also expected to be arrested. Indeed the Acting Commissioner of speaking to policemen at Mazenod indicated that “…More people are still going to be arrested in connection with Khethen’s death…”

Conclusion

I have attempted to bring to the fore the fact that these macabre killings in Lesotho had spread but are now being committed by the police. But more importantly, the previous government attempted to politically defend and protect the criminals who kidnapped and murdered Khetheng. In Parliament in response to a question by a Member of Parliament for Mokhotlong on Khetheng’s disappearance, the Acting Minister of Police, who unfortunately is a lawyer by profession, obfuscated and tried to ultimately use the well-worn-out argument that the matter is now in the courts. He denied that the government had anything to do with his unknown disappearance.

In the courts, the government employed a Senior Council to defend against the Khetheng family’s application to have the body of Khetheng produced. They used every delaying tactic to ensure that Mofolo who was last seen with Khetheng did not testify. When he was supposed to do it was too late. But Tšukulu who headed the Leribe Police Station testified claiming that he has no knowledge of the whereabouts of Khetheng. Both have now been charged of murder. It shows that those who dishonour the badge are not only at the junior levels of the police. Indeed the two female police officers at Hlotse are worth more that Mofolo and T’sukulu combined in honour. The deserve an award for bravery if there is one like that.

Like in the LDF, the recent promotions of policemen have revealed that those who commit crimes were rewarded with hefty promotions. Indeed some of those promotions which were processed and announced on Sunday 04/06/2017, a day of the elections, have now been cancelled. The bulk of the beneficiaries have questions to answer for several high level crimes.

But who ultimately is accountable for this miserable state of affairs in the collapse of the criminal justice system? Does this end with the police? Aren’t those political bosses who facilitated and protected criminals also accountable? History will judge!

MMS/14/08/2015

The rule of thumb of good governance is that public appointments and dismissals be done in good faith and without malice and vendetta. Those who forget this rule often unwittingly work against their own interests. They look petty and foolish at the end. This is the case about the concerted effort to block the appointment of Professor Mosito as President of the Court of Appeal of Lesotho. It is the same crew which mounted an unprecedented campaign to finally remove him from the Court of Appeal in the dying days of the Mosisili regime. No strategy or tactic was spared including setting up things akin to a kangaroo court to impeach him. So great was the venom of this gang, that even when Mosito resigned, they were not happy with that. They, contrary to the law which indicates that resignation aborts the process, still insisted on the issue of a bizarre gazette dismissing him as President of the Court of Appeal. It was the usual small headedness as a result of an acute inferiority complex which drove them. Small minds could not stand to have a qualified jurist who was not dependent on patronage and a scramble for legal fees from a captured government.
This crew thought finally it had succeeded to get rid of Mosito in the judicial system in Lesotho, but it had miscalculated. Mosito was reinstated a week ago in a government gazette following the demise of the Mosisili regime. It was in one sense the most emphatic rebuke of the gang which included political opportunists, lawyers and some foreign judges who served in the Court of Appeal before Mosito was appointed in January 2015. But more critically, it was a rejection of the appointment of a crew of retired South African judges who were always called upon by people with vested interests in the outcome of the impeachment of Mosito. Perhaps the greatest favour of all to Basotho was the broadcast of the proceedings of the Tribunal which had been assembled to impeach Mosito, by PC FM. It brought to the fore that the Tribunal did not even approximate one which sought fairness and truth. It was truly a Kangaroo Court, which did not even disguise its ultimate objective of getting rid of Mosito. The government side did not even have to present evidence in the normal way. The Tribunal sought evidence and prevented Mosito and his lawyers from challenging such evidence.
Mosito’s reinstatement is a welcome development but we have to understand the nature of the campaign to prevent him from assuming office and also the subsequent one which resulted in his removal in spite of his resignation. How did this conspiracy begin? What was driving this crew?

Ganging up against Mosito’s appointment
The conspiracy to block Mosito to become the President of the Court of Appeal probably started soon after the vacancy in the office occurred. This was caused by the resignation of Justice Ramolibedi who was facing several cases of impeachment ahead of criminal charges which had been spelt out in his impeachment. The public however only came to know about the manoeuvres in December 2014 when five lawyers wrote a well publicised statement queering the appointment of Mosito as the President of the Court of Appeal. The five lawyers, namely Salemane Phafane, Motiea Teele, Karabo Mohau, Zwelakhe Mda (all King’s Counsel) and Attorney Qhalehang Letsika; issued a statement ahead of the appointment challenging Mosito’s appointment. Among other things, the five lawyers argued that government could not make such a crucial decision as it would only be in power on a caretaker basis following the dissolution of parliament on 5 December 2014.

If the five lawyers had only raised the propriety or not and not the legality of appointing senior personnel when the government is in a caretaker mode, their case would have been politically understandable. The lawyers also urged Advocate Mosito to decline the appointment, noting: “Accordingly, we advise our learned colleague who has been approached, to take a principled position not to accept this appointment.
“We wish to remind him that in countries such as Kenya, judges appointed in similar controversial circumstances have been forced to resign. It is a fate we do not wish to be visited upon our learned colleague.” This was the beginning of the public spat which later went on to concretise into a two year campaign to remove him from office. The threat, that if he did not decline the appointment he may be forced to resign was clear. Theirs was not an empty threat; on the contrary it was a promise to have him removed. The five lawyers went on to appeal to the government to stop the process of appointment of Mosito.

We appeal to the powers-that-be to avoid bringing the administration of justice into disrepute and undermining the independence of the judiciary. This is because judicial officers serve important roles in ensuring human rights are protected and that all citizens have recourse in the courts of law in the event such rights are violated.
Other than to refer to an earlier case where Mosito had represented or provided legal opinion to the Prime Minister, there was nothing tangible about their fear of the administration of justice being undermined. It was just a political talk which masked personal interests of some of those who challenged Mosito’s appointment. Indeed in a later statement, the five lawyers ended up conceding that theirs was not about competence but timing of the appointment. At the time of his appointment, Dr Mosito was not only an academic lawyer as Dean of the Faculty of law, but was President of the Labour Appeal Court and had been in several panels of the Court of Appeal before. He was thus eminently better qualified than any of the people who questioned his appointment.

Later after Mosito was appointed, his antagonists told a journalist that they would challenge the appointment in the court of law. They did not except to the extent that all but one of those emerged as legal representatives of the Attorney General when he attempted to have the appointment nullified.

With intimidation having failed, the next stage was two pronged.. First was the sudden resignation of five South African judges in the Court of Appeal. These were Justice Douglas Scott, Justice Craig Howie, Justice Wilfred Thring, Justice Roger Cleaver and Justice Ian Farlam. Whether that was in protest that Scott who had been acting as President of the Court of Appeal was not confirmed, or whether that was an attempt to cripple the court, is not relevant. The critical point is that the mass resignation had a demonstration effect to the populace and also the legal fraternity. The spectre of a collapsing judicial system was powerful. It was a shameful thing to do for judges who had participated and enforced the awful apartheid state laws in South Africa. Mosito’s appointment, even if they objected to, did not approximate the wrongs of the system they enforced over decades in South Africa.

The mass resignations from the Court were exacerbated by the apparent reluctance of the Judicial Services Commission to fill the vacancies. Even after the President of the Court had taken the initiative to identify suitable candidates, the Judicial Services Commission declined to make appointments. That had the unfortunate result of destabilising the court. Only in October 2015 were cases on appeal held with one session having been cancelled. Only the outcry by the broader public forced the hand of the Judicial Services Commission to act.

A fascinating development is that after Mosisto was removed from office after a long campaign, three of those judges who resigned in mass, re-emerged with Farlam as acting President. The others are Louw and Cleaver. It will be fascinating to see if their consciences will now lead to their second mass resignation now that Mosito has been reinstated. But even at the personal level, one wonders how they will feel after their previous disgraceful conduct. This is more pertinent since a certain Mamello Morrison, who was Mosisili’s Senior Private Secretary, went on radio a few weeks before the June 2017 elections, stating that government has its loyal judges in South Africa who would be on standby should the Lesotho judges make adverse judgements against the government. (Maburu a rona a melomo e mefubelu a standby).

The second path that was followed by Mosito’s protagonists was to attempt to nullify his appointment through the courts of law. The Attorney General, Makhethe, launched a constitutional case on among others, that cabinet had not blessed the appointment. He lost both in the Constitutional Court and on appeal to the Court of Appeal. The interesting matter here was that the Attorney General’s legal team was composed of four of the five lawyers who had originally cried foul when they got wind that Mosito was going to get the nod for the President of the Court of Appeal. Perhaps as a sideline, we later found out that one of the five lawyers who felt aggrieved had been touted as the President of the Court of Appeal. It could therefore have been a question of sour grapes for one of them.
The moral bankruptcy of both the five lawyers and the Attorney General was later to be revealed when they did not raise a finger when six weeks before the June 2017 elections, another South African judge, Robert Nugent, was appointed as President of the Court of Appeal by the outgoing government. This is a case which Attorney General, Makhethe facilitated. It was a case of all hands on deck to prevent the possibility of Mosito being reappointed by the successor regime. It failed. This campaign did not stop after the legal collapse and shameful mass resignation of judges. It was carried to another level to fulfil the promise by the five lawyers who objected to Mosito’s appointment to force him to resign like judges in Kenya as they said. They sought to find fault in order to disqualify him as a judge.

Mosito’s ouster and reappointment
After losing in court and also having lost out in preventing the appointment of new judges into the Court of Appeal, the anti-Mosito crew now sought to find other ways of dislodging him. The entry of Leaba Thetsane, Director of Public Prosecutions (DPP) became the central pillar of the new efforts to get rid of Mosito. Thetsane now sought to have Mosito charged with a delay to register and pay taxes with the Lesotho Revenue Authority (LRA). This was despite the fact that there was no complaint from the LRA. Indeed during the impeachment process masterminded by the Attorney General, LRA did not present any evidence against Mosito. Documents from that body were accepted by the Tribunal without anybody in that organisation presenting or authenticating them. It was a bizarre process which had only one object, to get rid of Mosito at all costs. But more importantly, the efforts were meant to oust him and taint him with a criminal record in order to ensure that he would not return to the bench.

It is remarkable that two senior judicial officers, Attorney General and the DPP colluded to remove Mosito from the bench. Was it as part of a common purpose with the five lawyers in December 2014 who had threatened to have Mosito removed? This can’t be farfetched in view of the fact that in all the cases which both the Attorney General launched to nullify Mosito’s appointment there were always those same lawyers representing his office. It is also significant that the same team represented Thetsane when he challenged his retirement late in 2014.

While Makhethe facilitated the impeachment, Thetsane pursued the prosecution which could only take place after the impeachment process had taken its course. All the above were achieved with specially recruited South African prosecutors and retired South African judges. Thus while a vicious panel was assembled to impeach Mosito no matter what, Thetsane was also assembling his South African prosecutors who would present their case to South African judges. While the former process had run its course, the latter still has not. The justice system which is run by people with personal vendettas serving a decaying regime of Mosisili had everything to fear from an eminent jurist who was not indebted to them. They haunted Mosito out of office to serve personal egos and used a sycophantic South African band of prosecutors and judges to achieve their objectives. At the end Mosito had the last laugh. They will continue to lick their wounds but one of Mosisili’s worst injustices has been righted. Mosito is back and lesothoanalysis heartily congratulates him.

Congratulations Professor Mosito for your worthy appointment. You took a lot as they haunted you out, but you did not despair but continued to prosper. You go back to serve in the courts after your deserved promotion in the University to a new Professorial Rank. Welcome!!!

MMS/08/08/2017