- says their “opportunistic” bid to stop their trial is abuse of court processes,
Mohalenyane Phakela
THE Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, has slammed politicians, Mothetjoa Metsing and Selibe Mochoboroane, for persisting with their “opportunistic” court applications to stop or defer their treason and murder trial.
DPP Motinyane said Messrs Metsing and Mochoboroane were being opportunistic and abusing the court processes by belatedly challenging the Constitutional Court’s November 2018 judgement outlawing clause 10 of the October 2018 SADC-brokered government-opposition agreement which sought to shield them and other politicians from prosecution until after the implementation of the multi-sector reforms.
DPP Motinyane said “everything cannot come to a standstill because there is a document signed by politicians to stultify the trial on the basis that the politicians are participating in the reforms process”.
The reforms process was initiated by SADC in 2016 as part of efforts to achieve lasting peace and stability in Lesotho. The National Reforms Authority (NRA) has said the reforms will be implemented by September 2021 latest. Should Messrs Metsing and Mochoboroane have their way, they can only stand trial alongside former army commander, Tlali Kamoli, and others after that date.
The two politicians, Kamoli and his fellow soldiers; Captain Litekanyo Nyakane and Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa, have all been charged with treason against the first government of former Prime Minister Thomas Thabane. They are also accused of the murder of police Sub-Inspector Mokheseng Ramahloko which occurred during the same attempted coup against Mr Thabane’s government on 30 August 2014.
The trial had initially been slated for 25 February 2020 but it failed to take off after Messrs Metsing and Mochoboroane filed a constitutional application for an order barring DPP Motinyane from prosecuting them because of the 2018 agreement between the previous Thabane-led government and the opposition halting any trials of politicians 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 Constitutional Court had previously outlawed this particular clause 10 after the late Police Constable (PC) 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.
Early last year, Messrs Metsing and Mochoboroane petitioned the same court to rescind its 22 November 2018 judgement outlawing Clause 10. Their application was dismissed last November.
They subsequently filed an appeal against the judgement in the Court of Appeal which began its first session of this year on Monday. The matter was heard by Justices Kananelo Mosito (president), Phillip Musonda (Zambia), Petrus Damaseb (Namibia), Moses Chinhengo (Zimbabwe) and Johann Van Der Westhuizen (South Africa).
During the proceedings, the judges keenly interrogated clause 10. They asked questions such as, “what is the legal nature of clause 10? Is the DPP obliged to follow the decisions of other people like the South African Development Community and the politicians?”
However, Messrs Metsing and Mochoboroane’s lawyer, Adv Motiea Teele, argued that the Constitutional Court was wrong to rule against them, saying clause 10 was valid and enforceable as it had been made by the government “in relation to matters of peace and stability”.
“Clause 10 has a legal binding status to the extent that it was made by the government in relation to matters of peace and stability. It is enforceable. It does not violate the law because it does not shield them (Messrs Metsing and Mochoboroane) from prosecution. All that it seeks to do is to defer their trial. It is only a temporary measure to restore peace,” Adv Teele argued.
He also argued that Mr Metsing had only returned to the country in 2018 due to Clause 10 of the government-opposition agreement. Therefore, the state had an obligation to keep its promise and ensure he was not prosecuted until after the reforms, Adv Teele argued.
“Where a state has made a promise, it must keep it. Metsing returned from exile on the basis of that 2018 agreement. His understanding was that his prosecution will follow after the reforms,” Adv Teele argued.
However, DPP Motinyane’s lawyer, Adv Christopher Lephuthing, counter-argued that clause 10 “will always be unconstitutional and therefore it will be a waste of time to reopen the case”.
He argued that in any event, Mr Metsing was aware of the original 2018 Constitutional Court judgement outlawing clause 10 but never challenged it. Therefore, he could not abuse the court processes to challenge the judgement now that he and others were supposed to stand trial for treason and murder.
“There will never be a time when clause 10 will be constitutional therefore this is the most ill-conceived appeal,” Adv Lephuthing argued.
“The appellants claim to be partaking in reforms but they are not members of the National Reforms Authority (NRA). What is the point of this appeal? It was filed in bad faith, opportunistic and is an abuse of court processes.
“Metsing knew about the initial litigation challenging clause 10 but never sought to be joined to the case. Metsing said no court would overrule SADC. He waived his right to join.
“From November 2018, they did nothing about the judgement. There are other accused persons (Kamoli and others) in prison whose trial has been held in abeyance in order to accommodate the two politicians. Their trial must be finalised. There is no wisdom in separating soldiers and politicians when the soldiers were carrying out the mandate of the politicians. When Metsing came to Lesotho, clause 10 had already been declared unconstitutional (but he did nothing to challenge that until he was charged).
“Everything cannot come to a standstill because there is a document signed by politicians to stultify the trial on the basis that the politicians are participating in the reforms process,” Adv Lephuthing argued.
Messrs Metsing and Mochoboroane had also challenged DPP Motinyane’s decision to join them to the treason and murder trial, arguing they could not be tried in the High Court without first being remanded in the magistrates’ court as demanded by the Criminal Procedure and Evidence Act.
They initially filed a High Court application challenging the decision to join them to Kamoli’s trial in February 2021 before Chief Justice Sakoane Sakoane who referred the matter back to the trial judge, Botswana’s Justice Onkemetse Tshosa. Justice Sakoane had ruled that only Justice Tshosa had the jurisdiction to determine Messrs Metsing and Mochoboroane’s application.
Unhappy with the decision, the duo appealed to the apex court which heard their case on Monday.
The Court of Appeal bench reserved judgements in both cases to 14 May 2021.
“It has been a very long day. We will adjourn and prepare a judgement which will be handed down on 14 May 2021,” Justice Mosito said.
