(MENAFN- The Post) MASERU -PRIME Minister Moeketsi Majoro could find himself in a legal jam if Attorney General Haae Phoofolo refuses to go on terminal leave pending his exit in February next year.
The stage seems set for an epic legal battle after Advocate Phoofolo told the Prime Minister that he has no authority to put him on terminal leave.
Advocate Phoofolo argued that instead it is the King, as the appointing authority, who can remove him through forced leave, suspension or outright dismissal.
Majoro now has two choices: to stick to his decision or rectify it as Advocate Phoofolo is demanding.
Both options are however fraught with legal pitfalls.
The Attorney General might sue him if he insists on implementing his decision.
The second option is equally tricky because it involves undoing the decision and then advising the King to remove Advocate Phoofolo according to section 140 of the constitution.
That section says the Attorney General ''may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour''.
Only the King, acting on the advice of the Prime Minister, has the authority to remove the Attorney General, the section says.
The King will refer the matter to a tribunal of three judges appointed by the Chief Justice.
''The tribunal shall enquire into the matter and report on the facts thereof to the King and recommend to him whether the Attorney-General ought to be removed under this section,'' says Section 140 (7).
Subsection 8 says ''if the question of removing the Attorney-General has been referred to a tribunal under this section, the King, acting in accordance with the advice of the Prime Minister, may suspend the Attorney-General from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the King that the Attorney-General should not be removed.''
The Prime Minister can argue he has not removed him but sent him on terminal leave but Advocate Phoofolo may retort that it practically amounts to the same thing. Ideally, this appears straightforward but Advocate Phoofolo''s situation is different because the Prime Minister has already started his removal by sending him on terminal leave.
If the Prime Minister agrees that he lacks the authority to send the Attorney General on terminal leave he will have to advise the king to remove him according to the constitution.
In that case, he would write to Advocate Phoofolo asking him to give reasons why he cannot advise the king to refer the question of his removal to a tribunal.
But for that to withstand a legal challenge the Prime Minister has to state the charges clearly.
Section 140 says the removal can only be for ''inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.''
That is to say any other reason might not wash.
This puts the Prime Minister in a complicated position because his initial letter to Advocate Phoofolo did not mention any of the reasons started in the constitution. It wasn''t a show cause letter.
Rather, it was a gentle letter in which the Prime Minister merely said he wanted to start the process of appointing a new Attorney General early after considering the ''workloads to be generated by the rapid implementation of policies as well as the on-going reform process''.
If he then dispatches a new ''show cause letter'' that includes charges, Advocate Phoofolo could argue that this is an afterthought instigated by his refusal to leave office.
The Prime Minister cannot change his reasons for removing the Attorney General without triggering a legal battle. In the same way, his initial reasons for sending Advocate Phoofolo on terminal leave don''t amount to charges that can stand the test of Section 140.
He didn''t say the Attorney General was unable to unable to exercise his duties, incapacitated or had misbehaved.
The Prime Minister thus faces a legal dilemma. If he insists on his initial decision he might be sued.
Retracing his footsteps using Section 140 as the compass might lead to another legal battle.
Previous attempts to remove judges via an identical process have either failed or led to long drawn court fights. Whichever route he takes, the prime minister takes might end up spending the next six months with an Attorney General he doesn''t believe shares his vision or is up to the task.
Advocate Phoofolo has said he is not hostile to leaving but wants his exit to be according to the constitution. He is therefore not fighting for benefits, which the Prime Minister has already said are guaranteed. He says his fight is based on principle.
He thus appears to have nothing to lose by refusing to budge.
The Prime Minister, on the other hand, wants a new pair of hands to drive the Attorney General''s office because he doesn''t think Advocate Phoofolo is agile enough and shares his vision.
If this ends up in court Lesotho could be treated to arguments from some of the best legal minds in the country. Advocate Phoofolo has been a lawyer for 44 years and he can call on some of his equally experienced lawyer friends to fight in his corner. The Prime Minister already has Professor Mahao, whose knowledge of constitutional law earned him a doctorate and is revered.
The government also has the financial muscle to shop for legal brains within and beyond the borders. Here we go!
Shakeman Mugari
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