- says their treason trial will not affect the reforms process
Mohalenyane Phakela
THE Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, says the treason trial of opposition leaders, Mothetjoa Metsing and Selibe Mochoboroane, should go ahead because their political parties will still be adequately represented by other members in the multi-sector reforms processes.
Adv Motinyane said instead of trying to dodge prosecution, the duo should set an example to their followers about respecting the rule of law by standing trial to finality. She however, said there were very high prospects of securing convictions against the duo and their co-accused because there was overwhelming evidence against them.
Adv Motinyane says this in her court papers filed on Friday in response to Messrs Metsing and Mochoboroane’s Constitutional Court application for an order to stop the treason trial at least until after the implementation of the constitutional, security sector, media, judicial and governance reforms recommended by the Southern African Development Community (SADC) in 2016.
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 charges are 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 which occurred on 30 August 2014 during the attempted coup. In the 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 last week on 25 February 2020 after Messrs Metsing and Mochoboroane filed a Constitutional Court application for an order barring the Adv Motinyane from prosecuting them.
They argue that they should not be prosecuted on the grounds that the October 2018 agreement between the governing coalition and the opposition offers them immunity from prosecution for any crime until after the completion of the multi-sector reforms.
The October 2018 agreement paved way for Mr Metsing and other opposition leaders, who had been in exile, to return to Lesotho to participate in the processes towards the implementation of the multi-sector reforms.
Among other things, 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 Constitutional Court has previously outlawed this particular clause 10 of the agreement between the government and the opposition. Justices Mahase, Peete and Makara declared clause 10 of the Memorandum of Understanding between the government and the coalition of opposition parties unconstitutional on 22 November 2018.
This after the late Police Constable (PC) Mokalekale Khetheng’s father, Thabo Khetheng, had petitioned the court to declare the clause 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 three High Court judges to rescind their 22 November 2018 judgement.
Their application will be heard on 31 March 2020 while the treason trial is expected to commence on 6 April 2020.
In her answering affidavit filed on Friday, Adv Motinyane said the treason trial would not affect the reforms process as the LCD and MEC had other members to represent the two parties in Messrs Metsing and Mochoboroane’s absence.
She said the duo should also set an example to their followers about respecting the rule of law by standing trial to finality.
“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 dismissed Messrs Metsing and Mochoboroane’s Constitutional Court application as a delaying tactic “to frustrate the commencement of their trial”.
“The prosecution of the applicants is based on the evidence evincing reasonable prospects of a successful prosecution and in giving effect to the rule of law and constitutional values and not to advance anyone’s political endeavours as a smear campaign.
“If there is any abuse of process, it lies squarely at the door of the applicants whose sole purpose for filing this application, 15 months after the final judgement declaring clause 10 unconstitutional, is to frustrate the commencement of their trial. Instead of facing the charges head-on, the applicants seek to advance unnecessary litigation with not an iota of any reasonable prospects of success.”
Adv Motinyane said the treason trial had to be conducted without further delays for a number of reasons including the fact Lt-Gen Kamoli and Captain Nyakane had already been in custody for a considerate period.
Adv Motinyane said the DPP was an independent office empowered by the constitution to prosecute criminal cases and any law or agreement which interfered with those powers was therefore unconstitutional.
She 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.
“In terms of section 99(2) of the constitution, the DPP is enjoined with the powers to institute and undertake criminal proceedings against any person and in respect of any offence. In terms of section 99(3) of the constitution, the powers of the DPP may be personally exercised or delegated to subordinate members of her office.
“Although I am exclusively seized with the powers envisaged in section 99(2) and (3) of the constitution, I was not consulted at any stage by anyone in the government or anywhere else, in relation to the clause 10 of the memorandum of understanding between the government and coalition of opposition parties. I further did not, at any stage, commit to any undertaking with anyone that criminal proceedings would be suspended against the applicants or anyone else.
“The government cannot usurp the constitutional power, functions and independence of the DPP by binding the DPP to an agreement without her consent and without having consulted the DPP. It is incumbent for the government to enter into agreements which prescribe the constitution, its values, ethos, spirit and purport as well as in promoting equality and justice,” Adv Motinyane states.
