Kao v Principal Secretary Ministry of Foreign Affairs (CIV/APN 360 of 17) [2018] LSHC 18 (8 February 2018)

IN THE HIGH COURT OF LESOTHO CIV/APN/360/2017 HELD AT MASERU In the matter between: MOSHE KAO APPLICANT And PRINCIPAL SECRETARY MINISTRY OF FOREIGN AFFAIRS AND INTERNATIONAL RELATIONS 1ST RESPONDENT PUBLIC SERVICE COMMISSION ATTORNEY GENERAL 2ND RESPONDENT 3RD RESPONDENT JUDGMENT Coram: Justice S. N. Peete Dates of Hearing: 28TH November, 2017 Date of Judgment: 8TH February 2018 SUMMARY Constitution of Lesotho 1993 - powers to appoint Ambassador/Principal Representatives abroad – Section 143 of the Constitution. Where an Ambassador has not been commissioned before the King, the appointment is not complete. The court has no power to validate appointment. Royal Prerogative is an aspect of separation of powers. Annotations: Statutes: Constitution of Lesotho 1993 Cases (Reported): Peete J.: [1] On the 28th September 2017, the Applicant prayed for an interim order couched as follows: “1.1 Dispending with the normal rules of this Honourable Court as pertains to form, notice periods and modes of service and allowing this matter to be dealt with as one of urgency in terms of rule 8(22) of the High Court rules 1980, and the ordinary relief in paragraph 2 below be heard by the court on an urgent basis on a date to be determined by the above Honourable Court. 1.2 Interdicting Respondents either personally or through officers subordinate to them from acting in any manner to terminate Applicant’s post on the basis of the letter of exit hereto annexed and marked “A”, pending finalization hereof, alternatively: staying execution of Annexure “A” in any manner whatsoever i.e. reinstating Applicant or at least as Permanent Representative, pending finalization hereof. 2.1 That annexure “A” terminating Applicant’s appointment as both Ambassador and Permanent Representative be and is hereby reviewed and set aside.” *** Applicant has also applied for an order setting aside the decision terminating his appointment as Ambassador. [2] In his Founding Affidavit, the Applicant states that he is “the Ambassador and Permanent Representative of the Kingdom of Lesotho resident in Geneva.” He informs the court that on or about 25th January 2017 he received a formal appointment as the Ambassador of Lesotho Embassy in Geneva, Switzerland in Europe. He annexed a letter dated 25th January 2017. It is written thus: Ministry of Foreign Affairs and International Relations P. O. Box 1387 Maseru 100 FR/P/28013 Mr. Moshe Kao 25TH January, 2017 Commugny 1291 Switzerland Dear Sir, Appointment to the Foreign Service Arising out of the 8334th Minutes, Item 2162/16, I have pleasure in informing you that the Public Service Commission has concurred to your appointment on contact terms to hold the vacant office of Ambassador, Grade K, at the Lesotho Embassy in Geneva, Switzerland, for a period of thirty six (36) months, with effect from the date of assumption of the duties and responsibilities of the position. Please allow me on behalf of the management to wish you well in your new assignment. Yours Sincerely, T. Maina (MR.) Principal Secretary [3] Also annexed is a signed Agreement. It partly reads: The Kingdom of Lesotho Form of Agreement for Officers Employed on Local Contract Terms Agreement made this 25th day of January 2017 between the Government of Lesotho (hereinafter called “the Government” and MR. MOSHE KAO OF MINISTRY OF FOREIGN AFFAIRS and INTERNATIONAL RELATIONS (hereinafter called “the person engaged”). 1. The person engaged undertakes that he/she will diligently and faithfully perform the duties of AMBASSADOR in the Public Service of Lesotho for the term of his/her engagement, and will act, in all respects according to the instructions and directions given to him/her by the Government through the Head of Department or other duly authorised officer. In this agreement the Head of Department shall mean the person for the time being holding or acting in the office of Head of Department. [4] As a follow up, he says he received a note No.2 FR/CL/PROT/134 – attached to a savingram dated 9th January 2017 reading: Appointment of the Ambassador of the Kingdom of Lesotho to the United Nations Organisation Kindly be informed that the Government of Lesotho has appointed Mr. Moshe Neo Kao as Permanent Representative and Ambassador of Lesotho to the United Nations Organisation in Geneva. You are therefore, requested to transmit the enclosed Note verbale and Mr. Kao’s Curriculum Vitae requesting for an agreement to the United Nations Organisation. Encl. [5] NOTE NO: 2 FR/CL/PROT/134 The Ministry of Foreign Affairs of the Kingdom of Lesotho presents its compliments to the Secretary General of the United Nations and has the honour to advise the latter that the Government of Lesotho has appointed MR. MOSHE NEO KAO as the Permanent Representative and Ambassador of the Kingdom of Lesotho to the United Nations Organisation in Geneva and all other United Nations Specialised Agencies in Switzerland. He succeeds His Excellency Mr. Nkopane Raseeng Monyane who has been recalled to Lesotho. The Curriculum Vitae of Mr. Moshe Neo Kao is hereto attached, The Ministry of Foreign affairs of the Kingdom of Lesotho avails itself of this opportunity to renew to the Secretary General of the United Nations the assurances of its highest consideration. 09 January, 2017 Maseru [6] These were soon followed by a Credentials Note dated … and signed personally by the Minister of Foreign Affairs on the 16th February 2017. It reads: CREDENTIALS DIRECTOR GENERAL OF THE WORLD TRADE ORGANISATION WHEREAS the Government of the Kingdom of Lesotho has set up a Mission to maintain necessary contact with the Secretariat of the WORLD TRADE ORGANISATION. NOW THEREFORE these presents are to certify that the Government of the Kingdom of Lesotho has duly named, constituted and appointed MR. MOSHE NEO KAO to be its Permanent Representative to WORLD TRADE ORGANISATION. In witness whereof, I, ‘Mampono Khaketla, Minister of Foreign Affairs and International Relations of the Kingdom of Lesotho, have hereunto set my hand and affixed my seal. DONE AT MASERU this 16th day of FEBRUARY, 2017. ‘Mamponono Khaketla (DR.) Minister for Foreign Affairs and International Relations [7] The Minister also issued a Credentials Note dated 16th February 2017. It reads: CREDENTIALS SECRETARY GENERAL OF THE UNITED NATIONS WHEREAS the Government of the Kingdom of Lesotho has set up, at the seat of the United Nations, Geneva, Switzerland a Mission to maintain necessary contact with the Secretariat of the Organisation and the United Nations Agencies. NOW THEREFORE these presents are to certify that the Government of the Kingdom of Lesotho has duly named, constituted and appointed MR. MOSHE NEO KAO to be its Permanent Representative to the United Nations in Geneva, Switzerland. IN WITNESS whereof, I, ‘MAMPHONO KHAKETLA, Minister of Foreign Affairs and International Relations of the Kingdom of Lesotho, have hereunto set my hand and affixed my seal. DONE AT MASERU this 16th day of FEBRUARY, 2017. ‘Mamponono Khaketla (DR.) Minister for Foreign Affairs and International Relations [8] On the 13th July 2017, the Principal Secretary to the Ministry of Foreign Affairs wrote as follows to the Applicant: Ministry of Foreign Affairs and International Relations P. O. Box 1387 Maseru 100 FR/P/1228013 13 July, 2017 Mr. Moshe Kao Permanent Representative Lesotho Geneva Sir, REQUEST TO REPORT TO THE HEADQUARTERS You are hereby instructed to report to the office of the Principal Secretary of the Ministry of Foreign affairs and International Relations on Monday 24th July, 2017. You are therefore requested to bring with you copes of your appointment letters of your accreditation and commissioning. including Yours sincerely N. Monyane Principal Secretary [9] In a written response, the application narrated the events that preceded assumption at duty in Geneva. They read: Route de Divone 18A Commugny 1291 Switzerland FR/P/28013 26 July 2017 The Principals Secretary Ministry of Foreign Affairs and International Relations Maseru 100 Ntate Monyane, As per your instruction on 25th July 2017, please find herewith the chronological list of events relating to my appointment and posting to Geneva, Switzerland: 1. In October 2016, the then Minister of Foreign Affairs and International Relations, Mr. Sekhamane informed me that the Government of Lesotho was considering nominating me for the position of Ambassador Extraordinary and Plenipotentiary of the Kingdom of Lesotho to Swiss Confederation and Permanent Representative of Lesotho to the United Nations in Geneva and all other United Nations Specialized Agencies in Switzerland; 2. In early January 2017, the Acting Principal Secretariat informed me that my nomination was successful and I should report to his office to discuss the terms and conditions. I travelled to Maseru on 23 January 2017. On 25th January 2017 I was then provided with a letter of 3. appointment to foreign service and contract of employment for the position of Ambassador to Switzerland signed on 25th January 2017 for a period of 36 months; 4. On 15 February 2017 the then Minister of Foreign Affairs and International Relations, Dr. Khaketla informed me that my Letters of Accreditation and Permanent Representative of Lesotho to the United Nations Office in Geneva and to the World Trade Organisation will be handed to me and that I should proceed to Geneva to present the letters. 5. On 16th February, the Chief of Protocol provide me the letters of accreditation and I was also provided with the air ticket to Geneva leaving same day. Reported at duty station at Lesotho Embassy in Geneva on 6. 17th February 2017. Presented Credentials to the Director General of the United 7. Nations Office in Geneva on 23 February 2017. Presented Credentials to the Director General of the World 8. Trade Organization on 06 March 2017. On 18th May 2017, the Swiss Federal Council granted 9. Agreement to the nomination of H. E Mr. Moshe Neo Kao in the quality of Ambassador Extraordinary and Plenipotentiary of the Kingdom of Lesotho in Switzerland with residence in Geneva. I assume all the documentation relating to the above and other related matters are available in the Ministry, however, if there is additional information required, I will be available. Sincerely Moshe Kao CC Lesotho Permanent Mission – Geneva [10] He goes on to state that he received a letter dated 12th September 2017 annulling his appointment. It reads: *** Ministry of Foreign Affairs and International Relations P. O. Box 1387 Maseru 100 FR/P/1228013 12 September, 2017 Mr. Moshe Kao c/o Lesotho – Geneva Dear Mr. Kao, Your Appointment as Ambassador and Permanent Representative based in Geneva An investigation into your assumption of duty as Ambassador and Permanent Representative of Lesotho resident in Geneva, started in earnest with the letter that summoned you to Capital on the 24th July, 2017. You did present yourself as requested and, on the following day the two of us as requested and, on the following day the two of us examined your patently flawed assumption of ambassadorial duties. As requested at the end of that discourse you did submit a written document by way of your letter dated 26th July, 2017, wherein you gave a chronology of some processes and events leading to your being in Geneva as envoy, but stopped short of making suggestion as to how your anomalous appointment could be cured. Following the verbal and documented engagement as described above, as well as a further examination of other record including your Personal file, the following has emerged: 1. You have never been appointed by His Majesty King Letsie III as a Lesotho Representative Abroad as statute dictates. 2. The act of commissioning, a formal ceremony during which His Majesty gives letters of appointment to a new Representative abroad, and those of recalling the predecessor, was requested three times in your case. The three requests have not been granted. 3. The Right Honourable Prime Minister Dr. Motsoahae Thabane has not advised His Majesty to appoint you as f Representative Abroad. In the event, since you have never been duly appointed as statue requires, you are occupying the office of Ambassador and Permanent Representative by default, thus unlawfully. You are therefore directed to physically vacate the said office and cease to operate as if you were an Ambassador and Permanent Representative of the Kingdom of Lesotho at Geneva. Minister Counsellor Ralepoma will immediately take over as Charged d’ Affaires the unfortunate default occupancy to the treated as an innocent mistake, devoid of embarrassment and consequences. May I take this opportunity to wish you will in you fugue endeavours. Yours sincerely, Nkopane Monyane Principal Secretary *** [11] It was common cause that despite his assumption of duty as Ambassador of the Kingdom of Lesotho in Geneva, the Applicant had never been commissioned before and by His Majesty for one reason or another. [12] Applicant contends that the decision by the 1st Respondent to terminate his appointment as Ambassador was basically irrational. *** Respondent’s Case [13] In his Answering Affidavit, the 1st Respondent firmly states “that Applicant’s appointment to the office of Ambassador … and Permanent Representative of Lesotho in Geneva has not been done in terms of Section 143 (1) and (3) of the Constitution of Lesotho.” He says “Applicant’s appointment was by default and is tantamount to no appointment.” Applicant is aware that he was never appointed by His Majesty King Letsie III. [14] Section 143 (1) of Constitution of Lesotho reads: “143. (1) The power to appoint persons to hold or act in offices to which this section apples and to remove from office persons holding or acting in such offices shall vest in the King, acting in accordance with the advice of the Prime Minister. (2) Before tendering advice for the purposes of this section in relation to any person who holds any office in the public service, other than an office to which this section applies, the Prime Minister shall consult the Public Service Commission. The offices to which this section applies are the offices (3) of Ambassador, High Commissioner or other principal representative of Lesotho in any other country.” [15] Commissioning by His Majesty is a solemn ceremony held at the Royal Palace His Majesty reading His Message of a send-off to foreign lands. It is a “grand finale” and “sine qua non.” In instant case, the Royal Commission never took place. The then Minister of Foreign Affairs Mampono Khaketla had written what were headed “Credentials Notes” dated 16th February, 2017. The court is in doubt whether these “Credential Notes” substituted the Royal Commissioning. [16] Commissioning is a “Royal Prerogative,” performance of which validates all ambassadorial appointments and vests in the new Ambassador certain duties and functions along with diplomatic immunities and privileges; it is not in my view within the powers or jurisdiction of this Court to validate an incomplete appointment. This is the essence of the separation of powers principle. It is therefore clear that the then Minister of Foreign Affairs could not substitute her Credentials Notes over the “Commission Royale.” [17] It has become clear that many diplomatic steps and procedures have to be taken before a person can be commissioned under Section 143 (1) of the Constitution of Lesotho. The step finale is the solemn ceremony without which a person cannot assume duties and functions as Ambassador. The Applicant’s candidly concedes that the necessary commissioning was never done. [18] The Respondents’ counsel correctly asserts that the then Minister of Foreign Affairs had no authority under law to issue the Notes titled “Credentials” and Advocate Lebakeng - for the Respondents - submits that there never was a substantive appointment of Applicant as Ambassador. She submits that the appointment process had completely been irregular. This court has no power – without violating the Royal Prerogative – to validate the Applicant’s appointment either as Ambassador or Permanent Representative to Geneva. [19] The authority to appoint ambassadors is vested by Section 143 of the Constitution in the King acting in accordance with the advice of the Prime Minister. The Public Service Commission can only recognise such appointment for purposes of administration and for other related matters. [20] In these circumstances, this application does not succeed and it is dismissed. [21] No order as to costs. ______________________ S. N. PEETE JUDGE For Applicant: Advocate Mpaka For Respondents: Advocate Lebakeng (with her Advocate Moseme) 14