Mohalenyane Phakela
TREASON and murder-accused politicians, Mothetjoa Metsing and Selibe Mochoboroane, have accused the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, of abusing court processes and denying them the right to a fair trial.
This after DPP Motinyane opposed their application for stay of their prosecution pending their Court of Appeal application to stop their trial until after the implementation of the multi-sector reforms.
The duo argues that Adv Motinyane had initially agreed to defer their trial and her “sudden change of mind” was an abuse of court processes which was likely to deny them their constitutional right to a fair trial.
They state this in their High Court application filed this week for a stay of their murder and treason trial until after the Court of Appeal pronounces itself on their pending appeal to stop their trial until after the implementation of the multi-sector reforms. The application is before Botswana Judge Onkemetse Tshosa
Messrs Metsing and Mochoboroane were last week added to the list of accused alongside former army commander, Tlali Kamoli, Captain Litekanyo Nyakane and Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
The two politicians’ lawyer, Adv Motiea Teele, subsequently petitioned Justice Tshosa to defer their trial until after their appeals have been heard by the Court of Appeal when it begins its first session of the year from 12 April to 6 May 2021.
Justice Tshosa had scheduled to hear their application yesterday but that did not happen after Captain Nyakane, Lance Corporals Ntsane and Motsieloa’s lawyers also filed counter-applications for their discharge.
The three soldiers want to be discharged on the grounds that they have been in custody for far too long in violation of their rights to a speedy trial.
Alternatively, they want to be tried separately from the two politicians.
Adv Teele yesterday told the court that it would be prudent for his clients’ application to be consolidated and heard as one with the soldiers’ counter-applications. The lead prosecutor, South African Adv Shaun Abrahams echoed similar sentiments.
Justice Tshosa then ruled that all parties should file their heads of arguments on or before 23 April 2021. He said he would hear the matter on 26 April 2021.
Messrs Metsing and Mochoboroane have two pending appeals before the apex court to stop their trial.
The first is an appeal against the November 2020 Constitutional Court judgement which nullified clause 10 of an October 2018 SADC-brokered government-opposition agreement which shielded them and other politicians from prosecution until after the implementation of the multi-sector reforms.
They have also appealed against Chief Justice Sakoane Sakoane’s 9 February 2021 constitutional judgement wherein he declined to preside over their appeal against the prosecution’s move to join them to the murder and treason cases alongside former army commander Lieutenant General (Lt-Gen) Tlali Kamoli and others.
Messrs Metsing and Mochoboroane had argued they could not be joined to the treason and murder case as it was already in progress. Lt-Gen Kamoli and others had already been formally charged with the crime. They also argued that 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.
However, Justice Sakoane ruled that they must make their appeal before Justice Tshosa, the presiding judge in their treason and murder trial.
In their papers before Justice Tshosa, they accuse DPP Motinyane of abusing her powers by opposing their application for stay of proceedings until after the implementation of the multi-sector reforms.
“The rights that the DPP is obligated to respect, in so far as the applicants are concerned, are the rights to fair trial contained in section 12 of the constitution, which creates her office, and which she has sworn to uphold. To the extent that the DPP is actively seeking to prevent the applicants from meaningfully exercise their right to appeal by vexatiously instituting challenged criminal proceedings, the DPP is committing an abuse of court processes which should not be countenanced.
“She agreed to refrain from exercising her powers to institute the proceedings against the applicants pending the outcome of the decision by the Constitutional Court on Clause 10. When the Constitutional Court refused to grant rescission, the DPP for no reasonable or probable cause decides to press for the joinder of the applicants in CRI/T/001/2018 in spite of the pending appeal.
“With respect, this type of conduct is a manifestation of bad faith. The DPP acted for a good and substantial reason when she agreed to the stay of the process of joining the applicants (Messrs Metsing and Mochoboroane) in the first place. There is no rational basis why all of a sudden that sound and substantial reason is being brushed aside when the appeal is noted against the decision of the Constitutional Court.
“Her sudden irrational change of attitude is an abuse of court process…That is unfair and palpable. Equally clear is the fact that her conduct threatens to bring the administration of justice into disrepute.”
Former Deputy Prime Minister Metsing is the leader of the opposition Lesotho Congress for Democracy (LCD) while Mr Mochoboroane is leader of the Movement for Economic Change and Development Planning minister in the current Moeketsi Majoro-led governing coalition.
The argue that they could be a political hand behind DPP Motinyane’s push to prosecute them for treason in connection with the 30 August 2014 attempted coup 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.
In their court papers, Messrs Metsing and Mochoboroane argue that “the charges that she (Motinyane) seeks to bring against these applicants, particularly the political charges of treason, leads to an inference that there is a political interest in the joinder of the applicants.
“This is more so when she makes it appear as if the joinder can no longer wait, but must be done immediately. She conveniently forgets that these alleged political offences are said to have occurred in 2014. Several regimes have come and gone after that period. What is the urgency, one might ask? Can we be asked to ignore the fact that the applicants are political leaders of particular political parties– that is why they receive sort of treatment meted out to them now rather than before?
“What the DPP has done is drag this court into the controversy of her change in stance that reflects negatively on the impartiality of this honourable court,” the duo state.
