- as AG Phoofolo insists that only DPP has right to stop trial
Pascalinah Kabi
OPPOSITION leaders Mothetjoa Metsing and Selibe Mochoboroane’s bid to stop their treason trial at least until after the implementation of the multi-sector reforms has received a major boost from the Southern African Development Community (SADC) which has asked the government to halt the trial.
Retired former South African deputy chief justice Dikgang Moseneke, who leads SADC’s facilitation in Lesotho on behalf of South African President Cyril Ramaphosa, recently wrote to Prime Minister Thomas Thabane informing him that the trial should be stopped in line with the 2018 government-opposition agreement to defer criminal trials until after the implementation of the multi-sector reforms.
In his strongly worded letter on 29 March 2020, Justice Moseneke informs Dr Thabane that “any action or process in contravention of the letter and the spirit of the government-opposition agreement “will not be welcomed by the SADC”.
It remains to be seen if the SADC stance will force the judiciary’s hand after the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, recently stated that hers was an independent office empowered by the constitution to prosecute criminal cases. Any law or agreement which interfered with those powers was therefore unconstitutional.
Adv Motinyane said in any event, she was not consulted by any of the parties to the 2018 government-opposition agreement which purported to stop criminal trials of politicians at least until after the implementation of the reforms. She said this in her answering affidavit to the Constitutional Court application filed over a month ago by Messrs Metsing and Mochoboroane to stop the treason trial.
Her sentiments were backed up by Attorney General Haae Phoofolo who this week told the Lesotho Times that the DPP had the sole discretion to proceed with the treason trial or to defer it until after the multi-sector reforms.
“The prime minister and politicians cannot tell the DPP how to handle the business of her office,” Adv Phoofolo said.
“Section 99 of the constitution gives the DPP exclusive rights to prosecute whoever she feels she has to. Even I cannot tell the DPP what to do as I am only her boss administratively.
“It therefore remains the discretion of the DPP as to whether she will consider the SADC’s facilitator’s letter to the prime minister,” Adv Phoofolo said.
Adv Motinyane was not reachable on her mobile phone for comment.
Messrs Metsing and Mochoboroane have been charged with treason alongside former army commander Lieutenant General Tlali Kamoli and an army officer, Captain Litekanyo Nyakane.
The charge is in connection with the 30 August 2014 attempted coup against the first government of current Prime Minister Thomas Thabane. Mr Metsing was deputy prime minister at the time of the attempted coup while Mr Mochoboroane was Communications minister and LCD secretary general. The LCD was in a coalition with Dr Thabane’s All Basotho Convention (ABC) and the Basotho National Party (BNP). Lt-Gen Kamoli had been fired by Dr Thabane from his post as army commander on 29 August 2014 before allegedly orchestrating the 30 August 2014 attempted coup allegedly with the support of Messrs Metsing, Mochoboroane and Captain Nyakane. Dr Thabane and Mr Metsing had fallen out after the latter alleged that he was not being consulted on key decisions.
Lt-Gen Kamoli and Captain Nyakane are already in prison charged with the murder of police Sub-Inspector Mokheseng Ramahloko during the attempted coup. In that murder trial, they are charged along with other soldiers, Lance Corporal Motloheloa Ntsane and Lance Corporal Leutsoa Motsieloa.
The treason trial however failed to take off in the High Court on 25 February 2020 after Messrs Metsing and Mochoboroane filed a Constitutional Court application for an order barring Adv Motinyane from prosecuting them because of the October 2018 agreement halting any trials until after the completion of the reforms.
Clause 10 of that agreement states that “Mr Metsing and similarly placed persons in exile will not be subjected to any pending criminal proceedings during the dialogue and reforms process”.
The agreement had paved the way for their return from self-imposed exile.
The Constitutional Court has previously outlawed this particular clause 10 after the late police constable Mokalekale Khetheng’s father, Thabo Khetheng, petitioned the court to declare it unconstitutional saying self-serving agreements between politicians could not outstrip the constitution. PC Khetheng was killed by fellow police officers on 26 March 2016.
In their latest constitutional application, Messrs Metsing and Mochoboroane want the Constitutional Court judges to rescind their 22 November 2018 judgement.
Their quest to stop the trial has received a massive boost from Justice Moseneke who insist that criminal trials of politicians covered in the agreement must be deferred.
“As you may recall… the SADC facilitation process is a political process which was necessitated by the political events of August 2014 in the Kingdom of Lesotho. A political decision was taken by the regional body, jointly with all Lesotho stakeholders, to seek for a political process in order to end the political impasse. This political decision led to the adoption of the reforms process as the chosen route for the resolution of the problem,” reads Judge Moseneke’s 29 March 2020 letter to Dr Thabane.
“However, I have learnt with surprise and concern about the charges of high treason against the leader of the Lesotho Congress for Democracy (LCD), Mr Mothetjoa Metsing, and the leader of the Movement for Economic Change, Mr Selibe Mochoboroane, for their alleged involvement in an attempted coup in August 2014,” Justice Moseneke states.
He adds: “I wish to remind you of the Memorandum of Understanding (MOU), signed between the government of…Lesotho and the coalition of opposition parties on 16 October 2018, which was facilitated by the SADC Facilitation Team to…Lesotho.
“Article 10 of this MOU states that the government of…Lesotho shall ensure the safety of all citizens in exile and must provide adequate security to Mr Metsing and similarly placed exiled persons. Mr Metsing and similarly placed persons in exile will not be subjected to any criminal proceedings during the dialogue and reform process.
“In view of this, it is my considered and firm view of the rest of the SADC Facilitation Team that no political leaders should be charged or prosecuted until the dialogue and reforms process…. has been duly and fully completed. I am therefore appealing to you and the government of…Lesotho to adhere to the letter and spirit of the MOU.”
It remains to be seen if Adv Motinyane will agree to defer or completely stop the trial in the event that Messrs Metsing and Mochoboroane’s Constitutional Court application fails.
In her answering affidavit, Adv Motinyane said the treason trial should go ahead because it would not affect the reforms process as the LCD and MEC have other members to represent the two parties in Messrs Metsing and Mochoboroane’s absence.
“Proceeding with the criminal charges against the applicants (Messrs Metsing and Mochoboroane) does not in any way undermine the reform process and this is demonstrated by the advanced in-roads already made (towards the implementation of the reforms) as shown by the promulgation of the National Reforms Dialogue Act of 2018 and the National Reforms Authority Act of 2019,” Adv Motinyane states in her affidavit.
“The applicants are elected leaders of their respective political parties; hence representatives of their respective parties can represent their parties’ interests during the reforms process. As political leaders, the applicants should lead by example in demonstrating to their respective supporters that everyone is equal before the law by challenging the merits of the charges head-on in a criminal trial.
“It is a well-known fact that there are other politicians who are presently facing extremely serious criminal charges and whose matters are pending in various criminal courts. Instead (of standing trial), the applicants would prefer the former army commander (Lt-Gen Kamoli) and other soldiers, to stand trial (for treason) on the same facts with the same witnesses and on the same charges whilst they enjoy a temporary reprieve for the duration of the reforms?”
Adv Motinyane also dismisses Messrs Metsing and Mochoboroane’s Constitutional Court application as a delaying tactic “to frustrate the commencement of their trial”.
