Ngoni Muzofa
DIRECTOR of Public Prosecutions (DPP), Leaba Thetsane, will soon end his over three decades long civil service career after a mutual agreement with the government for him to go on leave pending retirement.
Over the course of his tenure as DPP, which began in 1999, Advocate Thetsane’s critics have accused him of discharging his duties with a political agenda.
They cite Advocate Thetsane’s seemingly spirited prosecution of Justice Kananelo Mosito on tax evasion charges as an example.
The DPP has also been accused of protecting some politicians from prosecution, such as former deputy prime minister Mothetjoa Metsing who is being investigated for fraud and corruption over the awarding of a M120 million road construction tender.
These allegations and many others were usually met with Advocate Thetsane’s typical refrain “I don’t talk to journalists” when reporters tried to solicit his comment.
However, Advocate Thetsane answers his critics in this no-holds barred interview with the Lesotho Times (LT) and also speaks about his reasons for not opposing former Defence minister Tšeliso Mokhosi’s bail application. Below are excerpts of the interview:
LT: Can you briefly outline the role of a DPP.
Thetsane: The role of a DPP is outlined in section 99 of Lesotho’s constitution which states that the office shall be in the public service. The section also stipulates that the DPP’s role is to institute and undertake criminal proceedings against any accused person before any court other than a court-martial.
The DPP is also autonomous and only answerable to the attorney-general (AG). However, the prevailing view in the legal fraternity is that the DPP is only answerable to the AG on administrative matters.
LT: What’s your response to allegations by your critics that you had a political agenda in deciding on the cases to prosecute and to drop?
Thetsane: Over the course of my tenure as DPP, I prosecuted numerous cases. To say that my office was used by politicians to prosecute or persecute members of the opposition is quite misplaced. If anything, whenever I had high profile cases on my desk, I would make it a point to get someone from outside the country who would not know about the political skirmishes in the country.
I know I was criticised for that. I was criticised for engaging the whites from outside the jurisdiction of Lesotho. But I didn’t mind. As an official of the stature of DPP, you are going to get such criticism. But, in the long run, people came to realise why we did that. I say so because in 2012, during the tenure of Prime Minister Thomas Thabane’s first government, there was a case which involved the then Court of Appeal president, Justice Michael Ramodibedi. Five counsel were assigned to that case, two of whom were from South Africa while two were locals. Another foreign counsel was the late Advocate Sipho Mdluli. It was only then that people began to realise that at times it is possible that a person from outside can be used.
By bringing outsiders into the case, we were avoiding what people were accusing us of. So, to those accusing me of prosecuting people on political grounds, I would ask them to tell me how many such people I have prosecuted and what the charges were.
However, I must say that in 2012, I saw something that actually shocked me, when a certain case involving a politician was brought to court without my knowledge. The case involved Ntate Metsing (in which he was charged with fraud, theft and abuse of power of around the use of M53 million).
At that time, I had to intervene to ensure that the DPP’s office was protected. I had to send the very same person who had brought it before the court without my knowledge to have it withdrawn.
My reasons were that if I am prosecuting high profile figures, like I did with the late Billy Macaefa (on sedition and subversion charges), I would make it a point that before that case is taken to court, I inform the AG among others. The AG would then inform the head of government (prime minister), either directly or through the agency of the Minister of law and Constitutional Affairs.
As for Ntate Metsing’s case, I had no knowledge of it. I was later told that he was charged with theft or fraud in his capacity as Local Government and Chieftainship Affairs minister. So, I had to send Crown Attorney Kananelo Khoboko, who had been used to institute the case to withdraw it.
That was the first time ever that I realised that, sadly, sometimes politicians can actually distort the function of the DPP’s office by using ignorant people to settle their political scores. It’s unfortunate!
LT: Was there any merit to the fraud case against Mr Metsing?
Thetsane: We should distinguish between two cases. There is the M53 million case and the Big Bravo case (in which Mr Metsing is alleged to have awarded a M120 million road construction tender to Big Bravo Construction Company for the construction of roads in the Ha-Matala and Ha-Leqele villages).
The M53 million case is the one I had to withdraw in court because it was done by someone behind my back. As I said earlier, whenever there was a high profile case, I would inform the AG. That was not done in the M53 million case. As the person in charge, I had to intervene.
Unfortunately, it happened at a time when I was having a tiff with the government over my retirement. The government was saying I should have retired at 55 years of age.
When I withdrew the case, I was expecting the police to follow the proper procedures, by bringing the case back to me. They have not brought it back to me to date because there was no case. If ever there was a case, it should have been brought to the desk of the DPP. Remember that I am talking about the M53 million case.
In that case, people keep on saying that I protected Metsing. No! I protected the integrity of my office. As DPP, I wouldn’t take people to court for the sake of it. I only do so in cases where if the court says let’s have the matter proceeded with in the next week, I am ready.
The DPP should not be seen to be dancing to the tune of politicians but to operate in an impartial and professional manner.
LT: Turning to the Big Bravo tender case, you were accused of protecting Mr Metsing after the collapse of Dr Thabane’s first government and the return to power of Dr Mosisili.
Thetsane: It is a distortion of the facts. When I began my leave (last month) that case had not landed on my desk. Surely the DCEO (Directorate on Corruption & Economic Offences) can bear testimony to that.
People have a tendency of misdirecting themselves. You will recall that the case has always been in the courts as far as the civil side of it is concerned.
There was a time when Ntate Metsing took the DCEO to court on the grounds that they had no powers to look into his finances. It was a civil case. The criminal case has always been with the DCEO. So, if anybody were to say that I made the case lose momentum during the tenure of Ntate Mosisili, it would not be true because it never landed on my desk.
People just need to bear in mind that the case has been in the courts but only from a civil perspective. After the civil side has been completed, we then go to the criminal side.
LT: Does the DPP not play a role in fast tracking the preferment of criminal charges in a case that is before the courts of law?
Thetsane: I would say no. The office of the DPP is akin to that of a judge. When a matter is brought before a DPP, he or she looks at it and makes a professional decision based on the facts. The minute the DPP decides that there is a case, the he or she brings it to court. Even at that stage, the DPP can merely play the role of placing the matter before the High Court. And the enrolment of the matter for hearing is the duty of the registrar of the High Court.
But, in a situation where the DPP has already decided that there is a case and has drawn up the indictment, of course he has a role to say Madam or Mr Registrar, can we please have the matter fast-tracked.
But that cannot happen when the case is still at the stage of investigation. As far as I know, in Ntate Metsing’s case, investigations are still ongoing.
The DPP does play a role especially after the case has been placed before the High Court for hearing. The DPP’s office has done it on numerous occasions, especially when it comes to high profile people.
LT: You and former AG Tšokolo Makhethe were accused of joining forces in frustrating Dr Thabane’s government during his first tenure and to persecute opponents of the Mosisili regime. What’s your response to that?
Thetsane: From 2012, I realised that some people wanted to use the DPP’s office to settle political scores. I just gave the example of Ntate Metsing. The regime of the day was not happy with the decision I took (to withdraw charges). They wanted Mr Metsing to be remanded. They did not care whether the case could stand in court or not.
My critics may accuse me of protecting Ntate Metsing, but I think I acted professionally. In the sense that I did not allow the office to be used in the manner they wanted to use it in settling political scores. And I don’t regret taking that decision. I am still waiting to see if the M53 million case will materialise.
To those who say I was not impartial, I can give you an example of cases related to the current Deputy Prime Minister (Monyane Moleleki) to highlight the fact that I assessed their merits based on the evidence.
The first case was about an orphanage in the Machache constituency and I said it was baseless. Moleleki was accused of using his position as a minister to have funds deposited into the orphanage’s account illegally. After perusal of the docket, the DPP was of the considered view that there was no case for honorable to answer for. Hence the DPP ordered the case to be closed for lack of evidence. Then came the second case of licenses (in which Mr Moleleki was accused of contravening the country’s mining regulations in 2012) and I said there was a case to answer.
He (Mr Moleleki) was remanded. The case was supposed to be heard in court. It did not proceed. Should I be blamed for that? We were ready to proceed with the case but he (Mr Moleleki) got sick. For that case, the government of the day had actually secured a special prosecutor, the late Attorney Mdhluli.
As a professional, I didn’t want to be told by anybody to prosecute or not to prosecute. So, I was not worried that certain people would portray me as favouring certain individuals because I did not take their opponents to court.
LT: On the issue of Justice Mosito, you and former AG Makhethe have been accused of embarking on a spirited campaign to ensure he was removed from the helm of the Court of Appeal at all costs. According to media reports, up to M14 million was expended in a bid to ensure his ouster. First of all, what motivated this determination to see the back of Justice Mosito and did you and Adv Makhethe have a personal vendetta against him?
Thetsane: Let me first of all say that I don’t harbour any grudges against Mosito. Those allegations are unfounded. When it comes to the case he was facing, the DPP works hand in glove with the police. If the police bring the case to my office, I look at it. If I am satisfied that it warrants us to prosecute, I proceed. It happened in the same manner as would have happened in any other case. Because the case of Ntate Mosito involved his failure to file tax returns. What actually shocked me in that case is that for all the years he had been on his own as an advocate, he had not registered with the LRA (Lesotho Revenue Authority).
That is why I used to say to the media that it was wrong to say he was charged for filing his tax returns late. It was a question of running a business without registering with the LRA. It’s a serious offence!
How he came to be investigated I don’t know because the police brought the docket to me.
LT: That is the question I intended to ask you, because Justice Mosito argued in his defence that the LRA was not the complainant in this matter. In essence, he averred that the prosecution was figuratively grieving more than the bereaved. He stated that the charges were purely political.
Thetsane: I don’t want to get embroiled in all those gymnastics. All I am saying is that if a docket is brought to the desk of the DPP, all the DPP has to do is to determine if there is a case or not.
If he complained that it was a witch-hunt that would not assist him in court because he made so many applications to avoid the case and all of them failed. What was left was for the criminal case to take its course.
As for the M14 million, I don’t know because I was not involved in the establishment of the impeachment tribunal.
LT: What is your take on the decision by the government to withdraw the tax evasion charges against Justice Mosito?
Thetsane: The decision is regrettable. It was made two days after I left for leave. Logic would have ordinarily dictated that the acting DPP (Adv Hlalefang Motinyane) consult the substantive office holder on why he had said there was a case. We are assuming that we are now in a proper democratic setting where good governance is paramount.
But it did not happen that way because the Minister of Law, Constitutional Affairs and Human Rights (Lebohang Hlaele) had approached me to say I should withdraw the case. And then I said it’s never done that way.
It is becoming clearer, even to a fool that the reason why I was asked to go on leave was for the acting DPP to have the Mosito case withdrawn. It was curious for the minister to hold a press conference announcing the looming retirement of the DPP and also stating the withdrawal of charges against Mosito. Those issues should have been dealt with separately and domestically. To me it was politically inspired.
LT: Do you think another DPP would re-institute the charges against Justice Mosito upon looking at the merits of the case?
Thetsane: It’s a very difficult question. I wouldn’t want to comment on that. Suffice to say that the manner in which the case was handled is regrettable.
LT: At the press conference you referred to, Mr Hlaele criticised you for failing to oppose the bail application of former Defence minister Tšeliso Mokhosi who went on to skip the country. What is your comment?
Thetsane: I have already stated my position to the minister. When one exercises his constitutional powers as the DPP, he does so to the exclusion of any other person. The people I deal with the most are the police. They can say to me, DPP we have strong reservations in so far as granting bail is concerned. Those are the people the DPP engages before agreeing or not agreeing to oppose bail. It is regrettable that in the case of Ntate Mokhosi they seemed to have so keen an interest in the matter. The minister has absolutely no role to play in the opposing or not opposing bail involving suspects. No matter who it is who is being charged with whatever crime.
In the case of Ntate Mokhosi, the police had certain reservations. You might have heard allegations of the DPP unilaterally not opposing Ntate Mokhosi bail. That is not true. I outlined in great detail the reasons for not opposing the bail.
The minister might have been unhappy with the decision, but the DPP is the sole arbiter when it comes to those issues. In deciding whether or not a suspect can be granted bail, the DPP applies his mind to the facts. Turning to the case of Ntate Mokhosi, it is imperative to assess the kind of evidence we have against him.
The basis for the murder charge is Mokhosi’s so-called confession in which he says: “I was informed by (former police commissioner Molahlehi) Letsoepa, that the police had killed the person (Police Constable Mokalekale Khetheng) they were going to arrest and thrown him into the river. Thereafter, I only heard that a Khetheng was going to be exhumed.”
Would you really say that is a strong case? Has he (Mr Mokhosi) played any part in the killing of this man? He says he was informed by Letsoepa. I had suggested that Ntate Mokhosi could be charged for complicity in the murder and as an accessory after the fact; someone who knew about it and did not do anything about it. Whether it was going to hold legally was another issue.
I wanted to avoid having Ntate Mokhosi accusing the police of coercing him into making the confession should the court order oral evidence in the ensuing hearing of the bail application. In my explanation to the acting AG, Adv Tsebang Putsoane, I made it abuntantly clear that I never acted unilaterally in not opposing Ntate Mokhosi’s bail application.
Rather, I did engage the police in the stature of Superintendent Mokete albeit he was not in agreement with my decision. All said and done, it is imperative that technocrats, DPP included, should be left to discharge their duties to the best of their abilities. Suffice it to say that politics is for politicians.
