MASERU — When Macaefa Billy walks into the dock next Friday his fate will not be in his hands.
Neither will it be in the hands of his lawyer Haae Phofoolo.
The secretary-general of the All Basotho Convention (ABC) party will face three prominent Appeal Court judges.
Justices I G Farlan, C T Howie and D G Scott — all highly respected judges from South Africa — are the honourable men who will decide his fate.
Theirs will be to decide whether the crown is right or wrong in saying Billy was not properly acquitted of sedition and subversion charges by the High Court last year.
The crown appealed to the Court of Appeal saying the High Court had erred in acquitting Billy for the sedition and subversion charges that emanated from a speech he gave at a political rally after the 2007 elections.
The stakes are very high.
If he is found guilty of the subversion charge he could be jailed for up to 20 years or be made to pay a fine of up to M100 000.
Subversion involves actions to unlawfully remove a legitimate government or encouraging, aiding and inciting someone to do so.
Yet even if he escapes this serious charge he could still be nailed for sedition.
The state claims his statements at the 2007 rally were seditious in that they were meant to “bring into hatred or contempt or to excite disaffection” against the government.
Because the sedition law has not been substantially revised since it was passed 72 years ago, Billy is likely to get a fine of M200 or two years in jail.
In similar previous cases the fine has usually carried the day.
But for a politician like Billy the impact of any conviction will have a colossal impact.
If he is found guilty his political career might be ruined: he will be stripped of his parliamentary seat and banned from running for any political office for five years.
That means he won’t be eligible to run in the 2012 elections.
Five years away from active politics might sink him into oblivion.
In its final submissions on Monday, the crown argued that Billy’s speech painted an image of “civil unrest and tumult that had nothing to do with petitions, processions and picketing”.
“The whole tenor of the speech is one of militant action to achieve the downfall of the Prime Minister (Pakalitha Mosisili) after an election had been held and extreme measures such as stay-ways had not succeeded in achieving the result sought in the elections,” the crown said.
It said the speech was a “virulent attack on a manifestly democratic institution such as the IEC” and that it “shows an intention to encourage the removal of a lawfully and democratically elected Prime Minister by conduct involving turmoil and unrest”.
It also said “given that the legislature has evidently chosen not to update the penalty provisions of the Sedition Proclamation there is little purpose in remitting the matter for sentence”.
But the defence was adamant that the speech “take(n) as a whole” could not constitute seditious utterances.
It argued that the crown was hinging its case statements in the speech and not the speech as a whole.
“The whole of the speech so taken down was not made the basis of the charge but from it certain sentences were taken and put into the form of a speech: long portions preceding and following the extracts were omitted,” the defence said.
It also argued that during the High Court trial a duplicate tape and not the original of the speech and the rally were played as evidence.
“The original was there and could have been viewed. But the crown chose to tender secondary evidence.”
There was a reasonable likelihood the dubbed version may “not give a holistic account of the speech”, the defence added.
The original take, they continued, could have been helpful in contextualising the speech “in its entirety and leaving no stone unturned”.
The crown, said the defence, has failed to prove that when Billy made the speech his intention was to topple the government by inciting hatred against it.
