THE High Court yesterday issued a temporary interdict barring the government from halting criminal proceedings against Lesotho Congress for Democracy leader Mothetjoa Metsing until after the completion of the multi-sector reforms process.
The decision followed an application by the family of the slain army commander, Lieutenant General Maaparankoe Mahao and other families whose relatives lost their lives during the political instability from 2014 to 2017.
The applicants were Thabo Khetheng, Maphanya Mahao, Mamonaheng Ramahloko, Malehlohonolo Nteso and Mamohau Qobete. They argued that clause 10 of the recent agreement between the government and the opposition should be declared unconstitutional as it sought to suspend any criminal proceedings against Mr Metsing and others who are implicated in the deaths of the applicants’ relatives.
The matter was held privately in the High Court Chambers yesterday. However, the applicants’ lawyer, Tumisang Mosotho, subsequently told the media that High Court judges ‘Maseforo Mahase, Semapo Peete and Molefi Makara issued an interim court order suspending the implementation of the clause 10 of the agreement between the government and the opposition parties pending the finalisation of the motion on 22 November 2018.
“The decision was that the operationalization of clause 10 be suspended pending finalisation of matters on 22 November,” Attorney Mosotho said, adding, “The matter was before the Acting Chief Justice ‘Mahase, Justice Makara and Justice Peete”.
Three weeks ago, the government and the opposition signed a deal meant to pave the way for the return of exiled opposition leaders to participate in the processes towards the implementation of the multi-sector reforms. The exiled leaders include former Mr Metsing, the deputy leader of the LCD, Tšeliso Mokhosi and the leader of the Socialist Revolution (SR) Teboho Mojapela.
Also expected to return 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.
Among other things, clause 10 of the 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”.
This did not gone down well with the families whose relatives were killed allegedly at the hands of security forces during the time that Mr Metsing and other opposition parties were at the helm of government.
Mr Metsing was deputy prime minister during the seven parties’ coalition that was headed by Democratic Congress (DC) leader, Pakalitha Mosisili.
During that time in 2015, Lt-Gen Mahao was assassinated by fellow soldiers who claimed he had resisted arrest for allegedly being the ringleader of a mutiny against the command of the then army chief Lt-Gen Tlali Kamoli.
However, Lt-Gen Mahao’s nephews — who were with him during the incident — disputed the army’s version of the event and instead accused the soldiers of killing him in cold blood.
And the Mahao and other families are adamant that the government must be stopped from implementing clause 10 of its agreement with the opposition.
The respondents are the Minster of Law and Constitutional Affairs, the Minister of Justice and Correctional Services, the leader of opposition, Mothibeli Mokhothu and Attorney General, Advocate Haae Phoofolo.
“The respondents should show cause if any, why the clause 10 of the Memorandum of Agreement between the government and the coalition of opposition parties shall not be declared unconstitutional as it violates Sections 18 and 19 of the Constitution by virtue of suspending criminal proceedings against Honourable Metsing and other similarly placed persons in exile during national dialogue and reforms,” the application states.
“They (the respondents) should further explain why clause 10 should not be declared unconstitutional in violation of Sections 99(2) and 99(3) of the Constitution to the extent that it seeks to hamstring the powers of the Director of Public Prosecutions by according preferential treatment to Honourable Metsing and other similarly placed persons in exile.
“They (the respondents) should further explain why clause 10 shall not be declared unconstitutional and in violation of Sections 118(2) and 118 (3) of the Constitution to the extent that the said clause seeks to suspend any criminal proceedings against Honourable Metsing and similarly placed persons.”
In his founding affidavit, Thabo Khetheng, the father of Police Constable Mokalekale Khetheng who was allegedly murdered by his colleagues in 2016, stated that the High Court should block the implementation of the clause 10 because it would jeopardise the case of his son which is already before the High Court.
“I aver that as a father of the deceased, I am directly affected by clause 10 as I perceive it as a violation of the constitution of Lesotho in so far as it suspends justice for an indefinite period of time. It is a one-sided agreement which tends to favour politicians and totally neglects and/or abandons victims of heinous crimes. It is therefore wrongful and unlawful and should be declared unconstitutional as it directly violates the constitution, especially against the victims.
“The policemen implicated in Khetheng’s murder were charged and remained in custody while Mr Mokhosi was charged and granted bail. The agreement gives him a further reprieve on not appearing before courts as he is not to be subjected to any pending criminal proceedings during the dialogue and reforms process.
“I aver that political expediency cannot be bigger and more important than justice in a democratic dispensation. Clause 10 gives politicians a preferential treatment and clearly violates section 26(1) which clearly advances the right to equality and justice. As victims we want justice and closure and anything that hinders and or prohibits justice is a violation of the constitution against me and my co-applicants,” Mr Khetheng states in his affidavit.