The beleaguered director general of the Directorate of Corruption and Economic Offences (DCEO), Mahlomola Manyokole, has had his bid stop Prime Minister Moeketsi Majoro from firing him, rejected by the High Court of Lesotho.
Manyokole wanted the Court to interdict law and justice minister Nqosa Mahao from advising Majoro to suspend him as DCEO head while a three-member tribunal appointed by the PM investigates his fitness to remain in office. In addition, he wanted the court to set the tribunal aside.
Majoro and Mahao were the first and second respondents, respectively in the matter which had also the tribunal among the respondents. Tribunal members, Justice Teboho Moiloa, Justice Semapo Peete and Justice Polo Banyane completed the line-up of respondents, which also included the Chief Justice and Attorney General.
In the judgement delivered yesterday, Justice Moroke Mokhesi dismissed Manyokole’s application with costs.
He noted that Manyokole attacked the Chief Justice’s decision to select Justice Moiloa as a member and chairperson of the tribunal to enquire into his fitness to hold office. His main complaint was that the DCEO as an institution is currently investigating the Judge for money laundering.
“The question to be answered is whether the administrative decision of the Chief Justice to appoint the learned Judge is impugnable on the basis of its irrationality. One is left wondering how the Chief Justice would have known that Justice Moiloa is under investigation. The Chief Justice’s decision was based on the material placed before him, which material depicts the judge as fit and proper. He could not have reasonably been expected to have known what was happening within the DCEO regarding the affairs of the learned judge.
“In fact, it is not the applicant’s case that the CJ was well aware of the investigations. To paint the Chief Justice’s decision with irrationality in the circumstances of this case is problematic. I do not understand how the investigations by the institution is now made an issue personal to its head such as to disqualify a judge from determining the head’s fitness to hold office, because as I see it, even if it were to come to a point where Mr Manyokole is removed, that would not ipso facto translate into the dropping of investigations that are underway with regard to the judge.
“It is not the 1st applicant’s (Manyokole’s) case that he has had a personal encounter with Justice Moiloa in the performance of his investigative powers under section 9 of Corruption (Amendment) Act of 2006. Even if he had been in contact with the Judge, that does not cure the anomaly and untenability of challenging the Chief Justice’s decision in these circumstances, when the course open to him is to seek Justice Moiloa’s disqualification before him in the tribunal, not through indirectly impugning the decision to appoint him in review proceedings. I therefore find that the CJ’s decision cannot be assailed on the basis of irrationality.”
Justice Mokhesi pointed out that, contrary to what Manyokole said, the tribunal is not at large to enquire into any issue which might possibly arise, and that it is not allowed to cast its net far and wide, nor is it tasked with making an investigation with the purpose of finding that the applicant should be removed.
He emohasised that the task of the tribunal is simply to enquire whether the material represented to the Prime Minister can possibly ground removal from office on the basis of the legislative circumscribed grounds.
“The incidences detailed out in the representation to the Prime Minister provides the parameters for matters which should be enquired into not anything extraneous thereto. Any other matter not contained in the representations to the Prime Minister would be ultra vires the mandate of the tribunal and therefore unlawful. This is so because the tribunal is established to probe whether the incidences tabulated in the representations to the Prime Minister justify removal of the DG
“It is the applicant’s contention that because the tribunal was established without affording him a hearing and the fact of the threatened suspension, constitute a violation of the independence and autonomy of the DCEO. White-collar-crime busting institutions such as the DCEO perform a very important task of ridding the society of corruption and all its concomitant ills.
“While doing so, the DCEO must have the institutional and decisional independence to firewall it from political influence. The criteria for independence of specialized bodies like the DCEO is spelled out in the Organization for Economic Co-operation and Development (OECD), Specialized Anti-Corruption Institutions: Review of Models (2008) report.
“It is generally accepted that there are three genera of accountability; institutional accountability, decisional accountability and behavioural accountability. The importance of accountability cannot be over-emphasized: It promotes public confidence in the institution and its head: It promotes the rule of law by proscribing conduct which has the potential to erode and even tarnish the institution’s independence, such as for example proscription against accepting bribes in the performance of duties; it is boon to institutional responsibility for the way it carries out its core mandate.
“The aim which is sought to be achieved by the procedure for removal of the DG–DCEO under section 4 of the Corruption Act is to ensure accountability on his part. Built into the schematic arrangements of the section is the need to ensure that political erosion of the institution’s independence is guarded against. The Minister responsible for the DCEO is not empowered to remove the DG himself. The 1st and 2nd respondents are following the procedure laid out in the Corruption Act which is aimed at ensuring that the independence and autonomy of the DCEO is not eroded, by entrusting an enquiry into the fitness of (Manyokole) to hold office to a panel of judges who may find nothing wrong with his probity to hold such office. I am unpersuaded that the independence of the DCEO is being undermined in this case.”
Mahao issued Manyokole with a letter, December 10 2020 demanding that he ‘show cause’ why he should not be suspended pending investigations into his fitness to remain in office. Manyokole approached the High Court the following day and before the matter could be heard, Mahao withdrew the letter. The two parties said they had reached an out of court settlement to be presented before Justice Molefi Makara, who was initially expected to preside over their dispute, for endorsement as an order of court.
This did not happen, and on December 2020, Majoro on set up the three-member tribunal headed by retired Judge Moiloa to investigate Adv Manyokole’s fitness to remain in office. Fellow retired Judge Peete and Justice Banyane are the other members of the tribunal.
Advocate tekane Maqakachane represented Manyokole. Attorney Monaheng Rasekoai represented Majoro and Mahao, Attorney Kuili Ndebele represented Chief Justice Sakoane and Attorney General Haae Phoofolo while Advocate Christopher Lephuthing appeared for the tribunal.
