FORMER Deputy Prime Minister Mothetjoa Metsing, former army commander Tlali Kamoli, and former Communications, Science and Technology Minister Selibe Mochoboroane’s much-anticipated treason trial failed to take off in the High Court this week.
This after Messrs Metsing and Mochoboroane filed an urgent Constitutional Court application for an order barring the Director of Public Prosecutions, Advocate Hlalefang Motinyane, from prosecuting them for treason on the grounds that an 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 constitutional, security sector, media, judicial and governance reforms recommended by the Southern African Development Community (SADC) in 2016.
Among other things, clause 10 of the 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”.
It remains to be seen how the Constitutional Court will decide on the latest application as it had previously outlawed this particular clause 10 of the agreement between the government and the opposition.
A Constitutional Court bench comprising of Acting Chief Justice, ‘Maseforo Mahase, Justices Semapo Peete and Molefi Makara, had on 22 November 2018 declared clause 10 of the agreement unconstitutional.
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 allegedly by fellow police officers on 26 March 2016. Former Defence and National Security Minister, Tšeliso Mokhosi has also been charged with PC Khetheng’s murder.
In their latest application filed on Monday, Messrs Metsing and Mochoboroane want the Constitutional Court to rescind its November 2018 order which declared clause 10 of the agreement unconstitutional.
The DPP, Minister of Law, Minister of Justice and Correctional Services, the Attorney General and the Registrar of High Court are all cited as respondents in the application.
The treason charges against Lt-Gen Kamoli, Messrs Metsing and Mochoboroane and another soldier, Captain Litekanyo Nyakane, are in connection with the 30 August 2014 attempted coup against the first government of current Prime Minister Thomas Thabane. Mr Metsing who leads the opposition Lesotho Congress for Democracy (LCD), was deputy prime minister at the time of the attempted coup while Movement for Economic Change (MEC) leader, Mr Mochoboroane, was Communications Minister and LCD secretary general at the time. 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 with the latter alleging he was not being consulted on key decisions.
On Tuesday, hordes of mostly LCD and MEC supporters thronged the High Court in Maseru to show solidarity with their leaders. The treason trial then failed to kick off due to Messrs Metsing and Mochoboroane’s fresh constitutional application arguing that clause 10 of the opposition’s agreement with the current governing coalition protected them from any criminal prosecution until after the completion of the multi-sector reforms.
Prosecutor, Advocate Shaun Abrahams, conceded in the court that the prosecution could not proceed with the treason charges until the Constitutional Court had pronounced itself on Messrs Metsing and Mochoboroane’s latest application.
Botswana judge Onkemetse Tshosa, who was supposed to preside over the treason trial, then postponed proceedings to 5 March 2020.
Justice Tshosa asked Messrs Metsing and Mochoboroane’s lawyer, Advocate Motiea Teele, to meet the three judges who presided over Mr Khetheng’s November 2018 application to set a date for hearing their latest application.
Thereafter Adv Teele KC and Adv Abrahams met Justices Mahase, Peete and Makara in their chambers and at about midday on Tuesday the three judges brought the matter into an open court.
In the open court, Justice Makara asked why Messrs Metsing and Mochoboroane had not attached their full judgement issued on 22 November 2018 outlawing clause 10 of the agreement.
“I personally wrote the final judgement in which we pronounced ourselves on the constitutionality of clause 10… It is a pity that we are using outdated laptops which were donated to the judiciary over 20 years ago therefore I do not know where that judgement is. However, there are several lawyers who were involved in the matter who must have copies. You must therefore get in touch with them for the final judgement which is supposed to be annexed to your application,” Justice Makara said.
Justice Mahase, who was the presiding judge, ordered the applicants and the crown to return to court today (Thursday) with the November 2018 judgement. She also said they would also map the way forward regarding the fresh Constitutional Court application today.