The appeal case of the suspended Director General of the Directorate on Corruption and Economic Offence (DCEO) Advocate Mahlomola Manyokole was heard before the President of Court of Appeal Professor Kananelo Mosito on Wednesday.
This comes five months after Manyokole was asked to â€œshow causeâ€ why he couldnâ€™t be suspended by the Minister of Law and Justice in December.
On December 10 Manyokole was served with a letter which was retracted after he was slapped with the second letter on December 25, 2020 in which minister Nqosa Mahao advised the Prime Minister Moeketsi Majoro to stage a three-man tribunal to probe his fitness to hold office.
The tribunal was chaired by the retired Justice Teboho Moiloa whom Manyokole argued was unfit for the role as he was subject of DCEOâ€™s investigations for money laundering and corruption allegations. The other two members of the tribunal were High Court Judge Polo Banyane and retired Judge Semapo Peete.
Manyokole swiftly sought the courtâ€™s intervention in a matter that was handled by Judge Moroke Mokhesi. However, Mokhesi in his judgment on February 18, 2021 dismissed Manyokoleâ€™s application of disqualifying the tribunalâ€™s probing with costs, while nullifying his suspension.
This week Manyokole was represented by Advocate Tekane Maqakachane in the Court of Appeal where he argued Mokhesiâ€™s verdict was unfair and unjust as the plaintiff was not awarded an opportunity for hearing in the tribunal and that Mahao made contrary representations after he retracted the first show cause letter with the case questioning the legitimacy of the matter still pending.
â€œThe facts are common course, the appellant instituted the first case after the show cause letter whereby one was on December 10, 2020. The paragraph five identified the procedural mandatory precepts that would lead to the suspension of the appellant.
â€œHaving considered that application 451/2020, the respondent admittedly withdrew the show cause letter unconditionally and after that in December around the 18th, it is clear that the Minister of Justice then made adverse representation to the Prime Minister, advising with the establishment of the tribunal to enquire into fitness of the appellant to hold the office of Director General of the DCEO.
â€œIt is also admitted that without hearing of giving the appellant the opportunity to address himself to the question of whether or not the tribunal ought to be established.
â€œThe first respondent (Prime Minister) went ahead to issue out the legal notice whose legality also is questioned. The material facts are common cause and shorn off the variation that we see in this volume. Those are the critical facts,â€ he said.
Adding, â€œThe first show cause letter was withdrawn but the case enquiring the legality of that letter is still pending. It had been retracted but they went on to establish the tribunal, and later the Minister of Law and Justice issued the second show cause letter which prompted the applicant on an urgent base, approach to the court.
â€œSo he had not been accorded any hearing prior to either the Minister making representation for the establishment of the tribunal and even when the Prime Minister considered to establish the tribunal, he did not give the appellant a hearing.
â€œThe quara quo having analysed the facts that the Minister in making adverse representation to the Prime Minister, had not accorded the appellant an opportunity to participate in the decision or to hear the appellant in the matter,â€ he said.
â€œOn paragraph 43 of the judgment holds that it is clear that the decision to advise the Prime Minister to establish tribunal without prior hearing to the appellant amounted to unfairness. Looking at the manner of how the applicant was treated, at paragraph 45, the court comes to a decision that the appellant was fairly treated.
â€œIt was unfair to advise the establishment of tribunal, but according to court it was fair with the reason that at the later stage after the establishment of tribunal, there was a show cause letter which amounted to hearing of the appellant. We have a difficulty of such analysis and I would define the court to reject the compactalisation of the audi alteram paterm on the one side with the duty to act fairly towards the appellant,â€ he said.
He further stated that the move to deny Manyokole a hearing before stretching a tribunal intended to test his fitness and ability to run the office, did not only tarnish his reputation but also his dignity.
â€œThese concepts are not in binary compartments, they are on the authority that we have cited least the case of the Republic verse the Chief Justice of Kenya that the audi alteram paterm rule and the duty to act fairly, there is no distinction between the two. They are not binaries, in fact the case of Matebesi goes further to say, the very audi principle has mutated and transmogrified into what is recently called the duty to act fairly.
â€œIt relates to the rights of the appellant which are said to be infringed, we know the issue of reputation would enquire that before an adverse decision which would impact on reputation, the consent person must be afforded a hearing. The pleadings of the appellant did not rely only on the issue of reputation; paragraph 7.1.2 he says; â€œmy right to reputation, my dignity and self-worth have been deninteriouly affected by the fact of the respondents not having afforded me an opportunity to participate in the decision whether or not to establish the tribunal.
â€œSo he is relying on both reputation as well as dignity, it is very important consider that,â€ he said citing the President of the Court of Appeal, Justice Michael Mathealira Ramolibedi was at loggerheads with the then Prime Minister, Motsoahae Thomas Thabane in 2013/14 where the similar case where a tribunal was appointed by the King upon representation of the Prime Minister to enquire whether Ramodibeli should be removed from his position as the President of the Court of Appeal for inability or misbehaviour, and whether the appellant had been treated unfairly as he afforded a hearing before appointing King to call tribunal.
â€œIn the case of the President of the Court of Appeal verses the Prime Minister, an argument that reputation and dignity are not affected, and which is the issue that the respondents are raising now, was rejected. But in the analysis of the court, the court zeroed in on the issue of reputation alone,â€ he said.
â€œIt was wrong to transpose the duty to hear at the time of establishing the tribunal and then transpose it to a separate juridical act suspension. Those are two distinct judicial act. Then court was very clear that the issue whether at the time the decision is made, was the appellant treated fairly,â€ he said.
Majoroâ€™s representative, Monaheng Rasekoai said regardless of the Directorate enjoying institutional autonomy powers, the agents at the Unit have to be accountable.
â€œMy humble submission is that, that approach effectively stultify the objective that the statutes seem to address, which is notion of accountability.
â€œI accept that the legislature in its wisdom endeavoured to create a framework where such a delicate institution will be free from undue political interference. Yes, the DCEO enjoys functional and institutional autonomy, and also quite significantly, the agents of the institution must be accountable. The only agents who endowed with a legislative mandate to operationalise the process are the Minister and the Prime Minister,â€ he said citing that the President of Court of Appealâ€™s case and Prime Minister where
â€œI submit and I want to make it in line with all the decision that quara quo adopted, I accept and passionately rely upon the decision that the president of the court of appeal verses the Prime Minister, and I submit that the decision in material respect, authoritative and instructive in the context of this case,â€ he said, quoting that the court of appeal judgment supports the decision made by the high court.
â€œThe President of court of appealâ€™s decision is reported in the LAC 2013 to 2014, page 437 paragraph 26 reads; in all the circumstances of the case I am therefore not persuaded that the Prime Ministerâ€™s failure to afford the appellant hearing in a strict sense before requesting the King to appoint a tribunal unfair. Conversely stated, in the view that I hold, insistence on strict compliance with audi principle in all its ramifications would in the circumstances of this case have been overly burdensome on the Prime Minister, undermined the administration of justice and helpful to the appellant,â€ he quoted.