…slams Magistrate Letsika for “unlawful” remand
Moorosi Tsiane
EMBATTLED Basotho Covenant Movement (BCM) leader, Reverend Tšepo Lipholo, is not backing down in his bid for freedom as he has now escalated the fight to the High Court.
Dr Lipholo has filed two separate applications in the High Court to secure his release from custody, where he has been detained since last Friday following his appearance before the Maseru Magistrates’ Court.
The first application, filed on Monday, challenges the legality of his remand by Magistrate Itumeleng Letsika on charges of sedition, contempt, and incitement, stemming from remarks considered disrespectful to the Royal Family.
In the second application, filed yesterday, Dr Lipholo is seeking bail after Magistrate Letsika refused to refer what his defence team described as “genuine constitutional questions” to the High Court.
Represented by Advocates Fusi Sehapi and Rantšiuoa Lesenyeho, Dr Lipholo had requested that the magistrate refer a question of law to the Constitutional Court, namely: whether he could be legally charged based on a directive not issued by the Director of Public Prosecutions (DPP), Hlalefang Motinyane, who is currently suspended.
They argued that only the DPP holds the constitutional authority to issue prosecution directives, and her absence casts doubt on the legitimacy of the charges. They further contended that Crown Prosecutor, Lehlanako Mofilikoane, lacked the authority to pursue the case in the DPP’s absence.
Magistrate Letsika ruled that her court lacked the jurisdiction to grant bail for sedition-related charges and insisted that the High Court was the proper forum for such matters.
In a formal appeal lodged with the High Court this week, Adv Lesenyeho slams Magistrate Letsika’s handling of the matter, describing it as both a legal misstep and a violation of constitutional procedure.
“The court a quo erred in law and misdirected itself by refusing to refer constitutional questions to the High Court,” reads the appeal.
Adv Lesenyeho also faults the legality of Dr Lipholo’s remand, arguing that he was brought before court beyond the constitutionally prescribed 48-hour period, thereby undermining his right to a fair trial.
He further challenges Adv Mofilikoane’s authority to initiate the charges, arguing that the absence of a valid DPP instruction rendered the charge sheet defective and the entire remand process unlawful.
“The court ought to have held that, in terms of Section 99(3) of the Constitution, only the DPP can issue a directive or instruction that the appellant be charged. Since the purported DPP/prosecutor, Ms Mofilikoane, had no mandate or locus to prosecute the appellant, her purported exercise of drawing criminal charges and proceeding with prosecution was null and void.
“There being no duly instructed or delegated DPP with proper standing in judicio, the court had no jurisdiction to entertain the criminal claim of a prosecutor who is not legally capacitated in the eyes of the law.
“Consequently, the charge sheet was null and void, and the appellant could not be lawfully remanded on the strength of such a fatally defective process.”
Adv Lesenyeho also contends that the magistrate erred in law by entertaining arguments on constitutional questions but then refused to refer them to the High Court as required under Sections 22(3) and 128 of the Constitution of Lesotho.
“Having implicitly found that there were genuine constitutional questions, the court ought to have referred them to the High Court (Constitutional Division) in terms of the Constitution. The learned magistrate erred in holding that constitutional issues existed but failed to either refer or decide on them.”
The High Court is yet to set a date for hearing the matter.
By the time of going to print last night, the Crown had not yet filed its opposing papers.
Dr Lipholo was first arrested last Wednesday at his Qoaling home by heavily armed soldiers and members of the police Special Operations Unit (SOU).
He spent two nights in custody at Police Headquarters before being brought before Magistrate Letsika and remains remanded in custody while his legal team fights to have his arraignment nullified.
In his bail application, Dr Lipholo cites compelling personal and professional reasons, including his role as a Member of Parliament, the need to prepare for trial, and his family’s dire situation.
He proposes to pay M5000 as bail and commits to complying with conditions which include reporting to the police on the last Friday of each month, attending all court proceedings, refraining from interfering with witnesses or investigations, and complying with any court ruling.
Dr Lipholo also appeals to the court to allow him to continue serving in the 11th Parliament, where he says he carries a public mandate to advocate for the restoration of Basotho land from South Africa.
He argues that his continued incarceration would deny him the chance to represent his constituents and pursue what he terms a “legitimate political struggle.”
Describing his personal hardship, Dr Lipholo says he is a pastor and father of five children, with the youngest being less than a year old. His wife is unemployed, and the family depends entirely on him.
“Your Petitioner is a pastor and desires to be released on bail so he can continue serving the community and support his family. He has five children, some of them minors, with the youngest being less than a year old. His wife is unemployed and, in his absence, the family faces severe economic hardship,” he says in court papers.
Despite the gravity of the charges, Dr Lipholo insists he is not a flight risk and cites his permanent residence in Qoaling and strong political and social ties to Lesotho. He also argues that fleeing would be impractical, as Lesotho is landlocked and surrounded by South Africa, the very country he accuses of suppressing his political movement.
He further contends that his continued detention while legal challenges are pending is not only prejudicial but also unconstitutional, citing the sub judice principle, which prohibits interference with ongoing court proceedings.
The High Court is scheduled to hear the bail application on Monday.
