Molibeli goes for broke in fight with Majoro

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  • petitions ConCourt to nullify PM’s “unconstitutional” moves to oust him,
  • alleges Majoro is punishing him for re-deploying his ‘blue-eyed boy’ DCP Lebajoa.   

Moorosi Tsiane

EMBATTLED Police Commissioner, Holomo Molibeli, is pulling out all the stops in his quest to stop Prime Minister Moeketsi Majoro from advising His Majesty, King Letsie III, to fire him.

The premier wants him fired over a plethora of charges including his incompetence and failure to tackle the thorny issue of police brutality against citizens.

But the commissioner is not prepared to go down without a fight despite obvious evidence that effective policing has fallen apart during his tenure and crime has taken hold in the country with Lesotho now being ranked the most homicidal nation in Africa’s 54 countries and sixth in the world.

In addition to petitioning the High Court, the beleaguered police boss, who was last week served with a letter demanding that he “show cause” why he should not be dismissed, has now escalated his case to the Constitutional Court.

He wants the Constitutional Court to issue an interlocutory order to stop what he says is Dr Majoro’s “abuse of power”.  An interlocutory order is a temporary order issued during the course of litigation, mainly between the commencement and conclusion of proceedings in any particular case.  If his application succeeds, Commissioner Molibeli would have bought time to remain in office until the High Court concludes his challenge of Dr Majoro’s decision, a process that may be very protracted.

Commissioner Molibeli alleges that by proceeding with his plans to oust him while the matter is pending in the High Court, Dr Majoro is usurping that court’s powers to adjudicate on the matter that is already before it.

Not only is Dr Majoro trampling on the independence of the judiciary, his conduct is in violation of the doctrine of separation of powers, Commissioner Molibeli argues.

From a purely public interest perspective, it seems Commissioner Molibeli faces an uphill struggle to convince anyone that he is a commissioner worth remaining in office nor that any of his rights have been violated. Under his leadership, the Lesotho Mounted Police Service (LMPS) has virtually fallen apart with the police themselves accused of having turned into career criminals.

Critics like the Lesotho Police Staff Association (LEPOSA) have accused the government of in fact violating the rights of Basotho, who have become routine victims of rampant violent crimes, by keeping probably the most incompetent police boss ever in office while criminals take charge.

For instance in April 2022, the family of Manthabang Radiile, who alongside his four month old nephew, was murdered by his live in partner Lebohang Nkuebe,   wrote to Commissioner Molibeli demanding answers why nothing had been done to bring Nkuebe to book despite that he had confessed to the murder at his initial arrest in 2017 and despite umpteenth direct appeals made to Commissioner Molibeli directly  to ensure justice was done. The Radiile family also demanded to know what action Commissioner Molibeli would take against one of his officers, Kubutu Kubutu, who rushed to facilitate free bail for Nkuebe, despite the gruesome nature of his crimes and who appears to have disappeared the whole docket.   The family copied its letter to a dozen top officials including Prime Minister Majoro and his deputy Mathibeli Mokhothu and threatened legal action against Commissioner Molibeli if he did not respond within 10 days. Commissioner Molibeli simply ignored the family as he had done many times before. He did not even bother to acknowledge the family’s pain by writing even a one liner promising to look into the matter. The family had already begun suing Commissioner Molibeli over his dereliction of duty. It said yesterday it was taking legal advice to assess whether it can be admitted as a friend of the court to support Dr Majoro’s belated bid to have Commissioner Molibeli fired. The family said it was also exploring the possibilities of bringing criminal action against Commissioner Molibeli himself for aiding and abetting criminality in clear cut cases where he and his officers had not taken action despite obvious evidence presented to them.

Even Deputy Police Commissioner Paseka Mokete recently lamented the acquittal of businessman Tšeliso Nthane, who had handed himself to the police after allegedly shooting and killing his driver, Kopang Mohapi, on 10 January 2019 in a suspected fit of rage. DCP Mokete described this as a “straight forward case” that should have led to at least a culpable homicide conviction.

But such has become the parlous state of the LMPS under Commissioner Molibeli that it cannot prepare basic dockets in simple straight forward cases which some LEPOSA officials say can be handled better by  early stage policing interns.

But in his long submissions, Commissioner Molibeli disingenuously blames it all on lack of resources.

In his founding affidavit filed before  Constitutional Court Judges ‘Maseforo Mahase, ’Mabatšoeneng Hlaele and Moneuoa Kopo this week, Commissioner Molibeli argues that Dr Majoro’s decision to advise His Majesty to retire him is “unconstitutional” and should therefore be declared null and void.

Dr Majoro, Police and Public Safety Minister Sekola Lepota, Attorney General Rapelang Motsieloa and King Letsie III are the first to fourth respondents respectively in the police boss’ application.

“I aver that the decision of the first respondent (Majoro) to proceed to advise His Majesty to require me to retire is unconstitutional and null and void ab initio (from the beginning) for the following reasons:

“Dr Majoro, being part of the executive branch of the government, deliberately took the step to advise His Majesty to require me to retire with full knowledge of the pendency of the same issues in a civil application before the High Court. The same issues in the matter are rendered moot and academic as they would have been overtaken by events (if Molibeli is retired).

“Thus, there will no longer be live controversy between me and Dr Majoro for the High Court to pronounce on. Consequently, the High Court would have actively and deliberately been prevented to determine the very same issues with which it is currently seized with in that same civil application,” Commissioner Molibeli argues.

He argues that the High Court must be left to decide his application without undue interference by the premier.

“Majoro is therefore consciously usurping the judicial power of the High Court thereby violating the fundamental constitutional doctrine and principle of the separation of powers. Majoro, as the Prime Minister and Head of the Executive, is effectively deciding the matter which otherwise has been removed from his purview and is now within the exclusive domain of the High Court to determine. He is thereby interfering with the High Court from exercising its discretion, authority, jurisdiction and judgement over the matter.

“Majoro is clearly violating the fundamental principles of sub judice (refraining from acting on issue before the courts) and the constitutional principle of the rule of law as well as the independence of the judiciary by not only trampling on the judicial space and authority contrary to section 118 of the Constitution. He is also preventing the High Court from exercising its judicial power in respect of the live issues raised in the pending civil application.

“I aver that the first respondent’s decision is thus reviewable on these constitutional grounds and the declarator of unconstitutionality thereof is appropriate.”

Commissioner Molibeli goes on to beg the Constitutional Court to interdict Dr Majoro from acting against him until the court has finalised his application to stay in office.

In his desperation to keep his job, the police boss even argues that he should not be ousted because stakeholders in the ongoing national reforms process have called for a moratorium on dismissals and new appointments to statutory institutions like the police and other security agencies.

Ironically, the same argument was advanced by opposition parties in their quest to stop then Prime Minister Thomas Thabane from appointing him to the top job back in 2017.

“It is the onerous constitutional duty and role of this Honourable Court to promote and protect the constitution and uphold constitutional integrity. Majoro’s decision constitutes a naked abuse of power and violation of the constitution and constitutional principles of great constitutional value to Lesotho.

“A supra-constitutional public opinion expressed in the Multi-Stakeholders’ National Dialogue, in no uncertain terms, holds that during the current reform processes there should be ‘no appointments and removals’ of security sector chiefs which includes the Commissioner of Police. The Prime Minister has publicly, in several public platforms, expressed that those exercising public power are bound by the (Multi-Stakeholders’) Plenary II Report. The report expressing public opinion of great supra-constitutional value, binds Majoro.

“Should the Honourable Court not grant the interlocutory relief, there is already existing and continuing harm to the above constitutional values… I also stand to be dismissed from office of the Commissioner of Police through an unlawful and unconstitutional process which violates constitutional principles and values,” the police chief states.

The matter will be argued on 23 June 2022. Before then, by 14 June 2022 latest, Dr Majoro and other respondents should have filed their answering affidavits to Commissioner Molibeli’s application. The latter has been ordered to file his replying affidavit on 17 June and thereafter, both sides should file their heads of arguments on or before 21 June 2022.

Dr Majoro surprised all and sundry last week with his “show cause” letter to Commissioner Molibeli.

The premier had long rebuffed petitions by the Lesotho Mounted Police Service Staff Association (LEPOSA) for him to fire the police boss.

LEPOSA accuses Commissioner Molibeli of ineptitude, bias, cronyism and failure to rein in his subordinates who tortured citizens and engaged in other acts of brutality.

The militant police union accused the premier of protecting the commissioner despite his alleged shortcomings.

Dr Majoro’s 1 June 2022 letter to Commissioner Molibeli demanding that the police boss “show cause” why he should not be fired on various charges hence  came as a surprise to many.

“In terms of section 5(3) of Police Service Act No.7 of 1998, The King, acting on the advice of the Prime Minister may require the Commissioner to retire in the interests of efficiency or effectiveness.

“As the Prime Minister and acting in terms of the above section, I intend to advise the King to retire you in the interests of efficiency or effectiveness in the Police Service. But before doing that I want to give you the opportunity to make representations with regard to the following (issues),” Dr Majoro states in his letter to Commissioner Molibeli.

The premier goes on to list several allegations against the commissioner including the latter’s “unbecoming conduct” as exemplified by his failure to comply with a 2021 High Court order to reverse some police promotions that he illegally made in 2018, his failure to investigate crimes and deal with complaints of police brutality.

Not only has Commissioner Molibeli been in contempt of court, he has even ignored the laws requiring him to consult the Police and Public Safety Minister before promoting anyone to the senior ranks within the force, the premier alleges.

Incidentally, the same allegation has been levelled against the police chief by Deputy Commissioner of Police (DCP), Beleme Lebajoa, who is challenging the former’s decision to reshuffle him from the Criminal Investigations Department (CID) to the police’s Finance and Infrastructure Department (FID). (See story on Page 4).

This and other failings on Commissioner Molibeli’s part, are “rendering the Lesotho Mounted Police Service (LMPS) inefficient, if not ineffective,” Dr Majoro states.

“You are therefore required to make representations indicating why I should not advise the King to retire you as the Commissioner of Police in the interests of efficiency or effectiveness within 48 hours of receipt of this letter,” the prime minister concludes.

But just as he did in December 2019 when the then Prime Minister Thabane attempted to fire him over similar allegations of incompetence and allowing police brutality to go unchecked, Commissioner Molibeli on Friday approached the High Court to stop Dr Majoro from advising King Letsie III to sack him.

In his application, Commissioner Molibeli cites Dr Majoro, Police Minister Lepota Sekola, Attorney General Rapelang Motsieloa and King Letsie III as the first to fourth respondents.

In his High Court application, Commissioner Molibeli argues that court has the authority “even at the show-cause stage to intervene in order to prevent the abuse of power, mala fide (bad faith) exercise of statutory power, to uphold the rule of law… and to protect  constitutional integrity”.

Despite serving him with a “show cause” letter, Dr Majoro has already made up his mind to advise the King to sack him hence the High Court should intervene to protect him against such “injustice”, Commissioner Molibeli argues.

“The decision to advise His Majesty has already been pre-determined, considering the contents of the show cause letter and the 1st Respondent’s response to request for further particulars. Thus the 1st Respondent (Majoro) will not even consider such representations (Molibeli’s reply to the ‘show cause’ letter). Further, taking into account that I am required to show cause within 48 hours, effectively no opportunity has been granted to me to make representations. This is contrary to section 5(4) of the Police Service Act 1998,” Commissioner Molibeli argues.

He further argues that Dr Majoro is scapegoating him by blaming him for the police failures which he says are attributable to political meddling and the state’s failure to adequately resource them to implement their mandate of fighting crime.

“The LMPS’ lack of capacity to discharge its constitutional and statutory mandate is state sponsored and architected. Each financial year that comes and goes, the 1st Respondent and the 2nd Respondent (Sekola) would meet with LMPS administration and would promise  an increase in state funding and budgeting for the LMPS in order to address the perennial problem but each year the LMPS budget keeps dwindling, thus affecting the LMPS’s capacity to discharge its constitutional mandate…”

Commissioner Molibeli argues that the charges he is being accused of are issues which have always bedeviled the police force even before his tenure. He argues that the same charges have previously been raised by LEPOSA and Dr Majoro had rightly rejected them as grounds for dismissing him. Therefore his sudden change of heart, using the very same excuses to dismiss him, is merely a smokescreen to hide the fact that the premier is only acting against him because they are no longer in good books.

“The incapacity of the LMPS to adequately discharge its constitutional and statutory mandate can be traced to pre-democratic Lesotho, and there is generally no political will to take the LMPS from this incapacity pit. It is to this spiraling dungeon where every Commissioner of Police is appointed to and it is from it where he can be dismissed at will on the pretext granted by section 5(3) of the Police Service Act 1998. A Police Commissioner’s longevity/brevity at the helm of the LMPS thus entirely depends on his being in good terms with the Prime Minister of the day, and can be removed the following day if he is no longer in good books with him.

“It is important for the Honourable Court to note that since 2020, hard on the heels of the 1st Respondent being appointed the Prime Minister, LEPOSA wrote to complain about my competence and ability to lead the LMPS and called for my sacking, based on the allegations materially similar to the present show cause letter of the 1st Respondent. The 1st Respondent never heeded their calls, precisely because, in his view the issue had nothing to do with the LMPS management/administration. The Respondent then formed a Cabinet Committee (in August 2021) which validated his hypotheses and made recommendations on how the problems should be dealt with.

“It is surprising today that whilst the majority of these problems in the LMPS antedated his appointment to the premiership of the government…today he turns to use them (cloaked under the interests of effectiveness or efficiency convenience to suit the pre-determined personal goals) to attain my sacking from the LMPS,” the commissioner argues.

He contends that their fallout is due to his decision to redeploy Deputy Commissioner of Police (DCP) Beleme Lebajoa from the Criminal Investigations Department (CID) to the Finance and Infrastructure (FID) desk. Commissioner Molibeli argues that he felt compelled to reshuffle DCP Lebajoa due to the latter’s alleged incompetence in investigating criminal cases. However, the premier is against the move because DCP Lebajoa is his ‘blue-eyed boy’, the commissioner argues.

“About a year and two months from the date of the 1st Respondent’s assumption of office as Prime Minister, I deployed DCP Beleme Lebajoa to DCP CID, and DCP Paseka Mokete was redeployed from DCP CID to DCP FID. This decision pretty much pleased the 1st Respondent as he was eager to see DCP Beleme Lebajoa heading the CID.

“When in 2022, the serious issues of incompetence on the part of DCP Beleme Lebajoa concerning the DCP CID arose, including the failure to properly investigate criminal cases and gather sufficient relevant evidence, leading to discharge of accused persons some in high profile cases, I once again in May 2022 redeployed DCP Beleme Lebajoa to DCP FID and DCP Paseka Mokete to DCP CID. DCP Beleme Lebajoa approached the High Court which stayed/froze the redeployment decision…

“Aggrieved by the redeployment decision, the 2nd Respondent wrote to me directing me that DCP Beleme Lebajoa should remain in the DCP CID… Hardly a day after my response to the 2nd Respondent, the 1st Respondent (Majoro) who was clearly and obviously annoyed and displeased by my decision to redeploy DCP Beleme Lebajoa, wrote to me the show-cause letter,” Commissioner Molibeli argues.

He also rejects the charge of failing to tackle police brutality. If anything, Dr Majoro was the one fuelling the scourge by ordering the reinstatement of some police officers he had suspended over allegations of torturing civilians, the police boss alleges.

Therefore, Commissioner Molibeli wants the High Court to interdict Dr Majoro on the grounds that his move to oust him is “unlawful and invalid and of no consequence or effect in law as it was triggered by and is based on an improper motive, is mala fide and amounts to an abuse of public power”.

 

 

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