Mohalenyane Phakela / Moorosi Tsiane
THE National Security Service (NSS) has no powers to investigate and prosecute criminal cases. It is only clothed with powers to gather intelligence information, Chief Justice Sakoane Sakoane has said.
The Chief Justice made the remarks this week while presiding over Basotho National Party (BNP) leader, Machesetsa Mofomobe, and former Democratic Congress (DC) youth league president, Moeketsi Shale’s constitutional application to outlaw Section 26 of the National Security Service Act 1998.
The Act was used by the NSS to try and seize the mobile phones of Messrs Mofomobe and Shale to assist the NSS investigate “and make copies of any information contained therein which has a bearing on the functions of the Service (NSS)”.
Mr Mofomobe refused to hand over his mobile phones to the NSS while Mr Shale’s legal representative, Advocate Tembo Lesupi, advised his client to comply. Mr Shale wants his phones back.
Justice Sakoane is presiding over the matter alongside fellow High Court Judges, Fumane Khabo and Moneuoa Kopo. Even though judgment was reserved, it seems very likely that Messrs Mofomobe and Shale will win their argument against Section 26 of the NSS Act, 1998, judging by the remarks of the Chief Justice.
The two politicians ran to the Constitutional Court after the NSS obtained a search and seizure warrant from the Office of the Prime Minister three weeks ago, to confiscate their mobile phones.
The NSS Director General, Pheello Ralenkoane, had written to Prime Minister and Minister of Defence and National Security, Sam Matekane, seeking the warrant to seize the phones.
According to Mr Ralenkoane, the duo is suspected of siphoning confidential information from NSS officers. While Mr Ralenkoane does not state from whom Mr Shale is obtaining information from within the NSS, he states in his answering papers that Mr Mofomobe is in an extra-marital affair with an NSS officer, Ithabeleng Pitso. He alleges Ms Pitso has been feeding Mr Mofomobe confidential information and attaches their whatsapp communications to back the claim.
Mr Ralenkoane also accuses Mr Mofomobe of involvement in the brutal killing of prominent journalist Ralikonelo Joki and money laundering.
“…. There is information therein which implicates his (Mofomobe’s) involvement in criminal activities that may tend to operate to undermine national security. These include money laundering using an unregistered money lending business with the help of 1.O.4 Pitso and others. Furthermore, the said Machesetsa Mofomobe is implicated in the murder of one Ralikonelo Joki.
“The information obtained therefrom will assist the Service to counter the said unauthorised reception of classified material and any activity intended to undermine the national security of the Kingdom of Lesotho,” Mr Ralenkoane states in his papers, justifying his quest to seize Mr Mofomobe’s phones.
Mr Mofomobe’s lawyer, Christopher Lephuthing, argued that the warrant of seizure was unlawful as it had been signed by an unauthorised person, Minister in the Prime Minister’s office Limpho Tau. Only Mr Matekane as the Minister of Defence and National Security was empowered to do so. He could not delegate the responsibility to a minister, the lawyer argued.
“The first applicant (Mofomobe) has a right to privacy and right to own property (cell phones). They (NSS) ought to have approached the court and clearly articulate the reasons for the sought seizure of cell phones in order for the court to consider whether they have a legitimate reason for such,” Advocate Lephuthing said.
“The NSS application was entertained by someone not sanctioned by law. The executive powers of signing that warrant cannot be delegated. Minister Tau had no powers to authorise the seizure.
“They (NSS) are saying my client is a money launderer and murder suspect. However, they do not have the legal authority to investigate money laundering and therefore should have engaged the Directorate on Corruption and Economic Offences (DCEO) to pursue the matter. They also do not have powers to investigate murder. That is the role of the police. The warrant therefore ought to be invalidated,” Advocate Lephuthing argued.
Mr Shale’s lawyer, Tembo Lesupi, aligned himself with Adv Lephuthing’s argument, adding that his client’s warrant was even vague and therefore could not stand.
“There is nothing attached to suggest who my client is talking to within the NSS. It is just a bare allegation which is not supported by any evidence whatsoever. The warrant does not state whether the phones contain any evidence of a commission of a crime. Investigations should be premised on a probable cause and not this fishing expedition.
“They (NSS) should deal with their officers who are leaking information as people who took oath to protect classified information,” Adv Lesupi argued.
State counsel, Letsie Moshoeshoe, counter-argued that the warrants issued by Minister Tau, as designated by Prime Minister Matekane were lawful. He said the NSS had invoked section 26 of the NSS Act which empowered them to conduct such seizure and search of cell phones.
“Section 26 of that Act is very clear and demarcates clearly the scope of discretion of the Prime Minister or a Minister designated by the Prime Minister. Simply put, Section 26 thereof is sufficiently clear in its terms and clearly indicates the conditions and circumstances in which the minister may, on application… issue out a warrant in order to obtain information which is likely to be of substantial value in assisting the service (NSS) to discharge any of its functions.
“The application made to the prime minister is very clear and has been founded on reasonable grounds. Section 26 of the Act states in clear and foreseeable terms …. the circumstances in which, and the conditions on which, the authorities are entitled to resort to measures affecting their rights. Unauthorised disclosure of NSS issues is an offence,” Adv Moshoeshoe argued.
However, Justice Sakoane punched holes into Adv Moshoeshoe’s averments. From his line of questioning, it became clear that the Chief Justice believes that the NSS had acted beyond its scope.
“The NSS should not enter criminal space, theirs is to gather intelligence. That is the business of the police to investigate and charge criminals. The constitution is clear in that when there are two options, you should adopt the less invasive. You should have intercepted or surveyed the applicants (than seize their phones).
“Why did they not also intercept cell phones of the NSS officers which is a less invasive measure? They have the requisite technology,” Justice Sakoane asked.
While the Chief Justice’s obiter remarks do not necessarily guarantee that he will rule against the NSS, it however appears unlikely that the intelligence service will win this one. The action of having phones of politicians confiscated on the whim of other politicians had already raised eyebrows.
The court reserved judgment.
“Evidently, this is a first case of this nature in this jurisdiction. Therefore, we will be breaking new ground. So the court will take some time to consider and come up with a judgement which will be helpful to both parties. You will be advised when the judgement is ready,” Justice Sakoane said.
