“…because SADC-brokered deals supersede local court judgements”
FORMER Deputy Prime Minister Mothetjoa Metsing says he is unfazed by the recent Constitutional Court ruling that cleared the way for his possible arrest and prosecution because “agreements brokered by regional and multi-state institutions should take precedence over local court judgements.”
Mr Metsing returned home on Sunday after more than a year in self-imposed exile to participate in the multi-stakeholder national dialogue which began in Maseru on Monday.
Mr Metsing had been granted relief from possible criminal charges when the government and the opposition signed a Memorandum of Agreement on 26 October 2018 facilitating his and other exiled opposition leaders’ return to participate in the national dialogue towards a plethora of reforms recommended by the Southern African Development Community (SADC).
Clause 10 of the Agreement exempted the former DPM from any possible prosecution upon his return stating that “Mr Metsing and similarly placed persons in exile will not be subjected to any pending criminal proceedings during the dialogue and reforms process”.
However, the Clause was successfully challenged in the Constitutional Court by families of victims of past rights abuses who claimed that it effectively placed perpetrators of rights abuses above the law. Mr Metsing nevertheless returned home from self-imposed exile despite the judgment.
Others who returned home with Mr Metsing are his deputy in the Lesotho Congress for Democracy (LCD) Tšeliso Mokhosi and the leader of Socialist Revolutionaries, Teboho Mojapela.
They all returned despite the Constitutional Court’s ruling which made their arrests a distinct possibility.
The Constitutional Court nullified the moratorium clause, which sought to bar their arrests and prosecution until after the reforms process, ruling that “clause 10 (of the government-opposition agreement) is unconstitutional in as far as it undermines and is inconsistent with section 99(3) of the constitution” which empowers the Director of Public Prosecutions (DPP) to decide whether or not to prosecute criminal cases.
Acting Chief Justice ‘Maseforo Mahase presided over the case together with judges Semapo Peete and Molefi Makara. The case had been brought to court by the family of the slain army commander, Lieutenant General Maaparankoe Mahao, and others whose relatives were killed at the hands of Lesotho Defence Force (LDF) soldiers during the time that Mr Metsing and other opposition parties were at the helm of government.
Mr Metsing was deputy prime minister during the previous seven parties’ coalition headed by Democratic Congress (DC) leader, Pakalitha Mosisili.
During that time in 2015, Lieutenant General Maaparankoe Mahao was assassinated by fellow soldiers who claimed he had resisted arrest for allegedly being the ring leader of a mutiny against the command of then army chief Lt-Gen Tlali Kamoli. The families who brought the Constitutional challenge against Clause 10 want both Messrs Mosisili and Metsing held accountable for the deaths of their relatives. They claim that the soldiers could not have acted without political authority.
Outlawing Clause 10 in a judgment delivered last Thursday, the Constitutional Court declared that “Clause 10 is unconstitutional in as far as it undermines and is inconsistent with section 99(3) of the constitution.
“In principle, the court cannot compromise the exercise of powers by the Director of Public Prosecutions (DPP). The same applies to the arresting powers assigned to the police by law and those entrusted upon the Directorate on Corruption and Economic Offences (DCEO). It can only intervene through a review against abuses of such powers or where there are unconstitutional acts.
“Even the courts do not in principle have the power to interfere with the arresting powers of the police and the DCEO,” the Constitutional Court ruled.
The DCEO’s lawyer, Advocate Sefako Seema, had earlier told the court that unless directed otherwise by the DPP, the DCEO would prosecute Mr Metsing.
“The DCEO is at a position to prosecute Mr Senatla and Mr Metsing who is one of the beneficiaries of Clause 10. The DPP in November gave the DCEO powers to prosecute Mr Metsing and to date the DPP has not told us otherwise.
“We will continue with the charges as we have been given authority to do so by the DPP and we will not halt the prosecution on the basis of Clause 10,” Adv Seema said.
However, in an interview with the Lesotho Times yesterday, Mr Metsing insisted he had nothing to fear. He claimed he would not be prosecuted because the deal which facilitated his return was brokered by SADC whose decisions took precedence over those of local courts.
“To me clause 10 remains intact because it is a political agreement among SADC, the opposition and the government. It is politically binding despite the court ruling and I expect that the courts will respect that as well.
“No one had to convince me to return because I felt that the agreement on its own was enough to protect me for the duration of the reforms process.
“The (Constitutional Court) judgement doesn’t nullify clause 10 in the agreement and as a member state of SADC we are obliged to abide by that agreement. And the government also knows the importance of adhering to (decisions of) multilateral institutions. We don’t live in an island where we strictly adhere to our (national) laws, we need other states as well,” Mr Metsing said.
Sources within SADC told this publication yesterday that there had been doubts about Mr Metsing and other exiles’ return after the Thursday court verdict. The sources said Mr Metsing had considered staying put in South Africa fearing arrest but he was eventually persuaded to return after a delegation comprising of government and opposition officials assured him that he would not be prosecuted despite the court verdict. The team, dubbed the ‘deadlock breaking mechanism team’, is said to have met Mr Metsing last Thursday and assured him that the government would abide by the moratorium to stay his prosecution as it was brokered by SADC.
The ‘deadlock breaking mechanism team’ is said to be composed of two opposition officials (Apesi Ratsele and Lekhetho Rakuoane) and two government representatives (Samonyane Ntsekele and Mokhele Moletsane).
Efforts to contact the four failed yesterday as their phones either rang unanswered or were switched off.
While the Constitutional Court invalidated clause 10, it also left the door open for the government to find a political solution regarding the prosecution of Mr Metsing and others.
“…We reiterate our suggestion that the parties should consider exploring a possible political solution under the facilitation of SADC and the Christian Council of Lesotho. The latter has for decades demonstrated its ability to neutrally guide the nation under mercy of the Almighty God towards resolving politically oriented national challenges,” the Constitutional Court said in the judgement that was delivered by Justice Makara.
According to the SADC sources, the deadlock breaking mechanism team, made reference to the court’s advice on the need for the parties to reach a political settlement when they engaged Mr Metsing in Ladybrand.
However, Mr Metsing insisted he had not needed any persuasion to return home because, as far as he was concerned, the opposition’s deal with the government superseded any court ruling as it had the blessings of SADC.
“There have been several meetings held ahead of my home-coming and I don’t know if this (meeting by the deadlock breaking team to persuade him to return) could have been one of the many meetings. But like I have already said, no one had to go an extra-mile to convince me to come home because the agreement with the government was already signed.
“However, there was a meeting which was held last Thursday to work on the final touch ups to my return. I only came home because I felt there was a need to do so now that a deal had been brokered and I felt I had to be present in the reforms process for the sake of my people and my country,” added Mr Metsing.
Those who remain in exile are former police commissioner Molahlehi Letsoepa, former Director of the National Security Services (NSS)Tumo Lekhooa; Assistant Superintendent Bereng Ramahetlane who is an officer with the Lesotho Correctional Service and Mr Lebohang Setsomi who was head of procurement at the Lesotho Mounted Police Service.
Mr Metsing said he had to return without them because “their issues are still being attended to because they are not politicians”.
“There was a meeting last Thursday in which they were called for a briefing … and in the meeting it was agreed that their issue would be looked into because they are public servants…. They can’t just return without even knowing what’s in store for them.
“They were promised that their issue would have been dealt before the end of this week but I think there might be changes since some of the people who were heading the meeting are here in the country for the multi-stakeholder national dialogue.
“There will have to be very clear procedures on how their cases shall be handled,” Mr Metsing said.
Lawyers canvassed yesterday said Mr Metsing’s claim that deals brokered by multi-lateral institutions took precedent over local court judgements was “legally debatable”.
“Lesotho is governed by the laws of Lesotho. Any deal brokered by any external parties must conform with the laws of Lesotho,” said one lawyer who preferred anonymity saying he did not want to be seen as agitating for Mr Metsing’s arrest.
The DCEO had been investigating Mr Metsing for alleged corruption. When he fled the country claiming his live was in danger, Prime Minister Thomas Thabane had in turn countered by declaring Mr Metsing “a fugitive from justice”. The premier had said the DCEO was ready to prosecute Mr Metsing and urged the former DPM to come and answer for his “crimes”.