Mohalenyane Phakela
A former minister accused of raping a 17 year old orphan is now free after negotiating an out of court deal to build a house for the victim and pay her M1000 in monthly maintenance in a seemingly corrupt judicial settlement condemned by top legal experts.
The former minister in question is Mootsi Lehata, who served in the Law and Constitutional Affairs portfolio, under the previous seven parties’ coalition of then Prime Minister Pakalitha Mosisili which reigned between March 2015 and June 2017. He stands accused of raping and impregnating the 17 year old in Matsieng in January 2018.
But instead of standing trial for the alleged offence, Mr Lehata has negotiated the controversial deal to evade trial. The deal was endorsed by southern region Chief Magistrate Manyathela Kolobe when Mr Lehata appeared before him last week.
The deal to withdraw the rape charges against Mr Lehata has attracted the ire of legal experts who describe it as improper and irregular. University of Limpopo public law professor, Hoolo Nyane, has strongly condemned the deal.
Human rights lawyer and women’s rights activist, Lineo Tsikoane, has also lambasted the state for allowing Mr Lehata to go unpunished for the alleged offence. Advocate Tsikoane said “Lesotho was gradually becoming the rape capital of the world” as the state was allowing those with money to get away with crimes while failing vulnerable women in the process.
Mr Lehata, who was a Democratic Congress (DC) minister in the Dr Mosisili led coalition, was arrested on 29 June 2018 on allegations of raping the then 17-year-old orphan girl in Matsieng. The girl reportedly fell pregnant as a result of the January 2018 rape.
After numerous postponements, the case was finally heard on 10 July 2018 by Chief Magistrate ‘Matankiso Nthunya. Chief magistrate Nthunya read the charge to the Mr Lehata and released him on M500 bail on condition that he did not interfere with witnesses and police investigations.
“The said accused is charged with the crime of sexual offence…Upon or about 19 January 2018 at or near Ha Moima Sehlabeng sa Matsieng in the district of Maseru, the said accused did unlawfully and intentionally have sexual intercourse with the minor – a Mosotho female aged 17 without her consent,” Chief Magistrate Nthunya read then.
After more postponements from July last year, Chief Magistrate Nthunya eventually recused herself from the case in February 2019 and southern region Chief Magistrate Kolobe took over. No reason was proffered as to why Mrs Nthunya had recused herself.
Controversy continued to dog the case with sources close to the developments telling the Lesotho Times that some family members, who had initially attempted to sweep the matter under the carpet, relocated the girl to a secret location in South Africa late last year. The relocation was allegedly done against the alleged victim’s will and this negatively affected efforts by officials in the Ministry of Social Development to assist her after her ordeal. The sources said the ministry had been assisting the girl through counselling sessions to help her get over her ordeal.
The girl eventually gave birth in October 2018 in South Africa. She has now agreed to drop the case in an out of court deal that will see Mr Lehata build a house for her and her baby. Mr Lehata will also pay her a monthly fee of M1000 as maintenance for the minor child.
Magistrate Kolobe endorsed the controversial deal when Mr Lehata and the complainant appeared before him on 25 July 2019. This after Maseru district prosecutor, Gcinimusi Tshabalala, told the court that the victim was withdrawing the case. Back in January this year when the Lesotho Times first learnt that the victim had been shipped to South Africa by some family members who did not want her to testify, Mr Tshabalala insisted that she would be available to testify when the trial got underway.
“The hearing is set for 21 February (2019) and I am expecting the girl to be present in court. I am not aware that she is not in the country but she will have to be here.
“If need be, I will subpoena her and ask the police to track her down,” Mr Tshabalala told the Lesotho Times at the time.
However, the prosecutor sang a different tune last week.
“It is the complaint’s decision to abandon this case on condition that the accused maintains the child (born as a result of the alleged rape) to the tune of M1000 and that the complaint builds a house where she (alleged victim) will live together with her child,” Mr Tshabalala told the court on 25 July 2019.
Mr Tshabalala also told chief magistrate Kolobe that he had no objection to the deal and the dropping of the charges.
On her part, the complaint told the court she was in agreement “with what Mr Tshabalala had said”. Mr Lehata’s lawyer, Advocate Qhalehang Letsika, concurred.
But the deal is being condemned as a corrupt settlement as the State is obliged to prosecute all criminal cases without deferring to the whims of witnesses.
Adv Tsikoane and Professor Nyane are particularly disappointed by the withdrawal of the charges.
By allowing Mr Lehata to go unpunished, Adv Tsikoane said the state was essentially allowing rich people to buy their freedom and get away with crime.
“Our biggest problem is having crimes sedated with money. The girl was probably cornered because she has no one to provide for her. In light of widespread poverty in Lesotho, it means the rich can always buy their way and take advantage of the poor.
“This is very painful for us as a nation. We trust the state to protect us from all criminal activity not to aid and abet criminals. In this case the state has betrayed the rights of women.
“Lesotho is gradually becoming the rape capital of the world and we do not see the state doing anything to ensure that rape crimes do not occur. It can of course be said that the girl was within her rights to abandon the case if she so wished but the state still has a responsibility to ensure that justice is served. What did the state do to ensure that justice is served from when this matter was reported?
“As a human rights lawyer, I was part of a programme to rehabilitate the girl. Does the state even consider the trauma the girl suffered while this matter dragged before the court,” Adv Tsikoane asked rhetorically.
On his part, Prof Nyane said the withdrawal of the case was “an improper and irregular act by the prosecution”.
“It is not for the complainant or the accused to tell the prosecutor what to do in criminal cases. The prosecution can only withdraw the case when the trial can no longer be sustained, for instance if the witnesses have died.
“From what I learn of this case, it was a straight-forward one and it was improper and irregular for the prosecution to withdraw it under such circumstances in which the accused makes an offer,” Prof Nyane told the Lesotho Times.
Mr Tshabalala and the Director of Public Prosecutions, Advocate Hlalefang Motinyane, refused to comment on the matter. Adv Motinyane advised this publication to “please contact someone else” for comment. Mr Tshabalala advised this publication to “rely on what was said in court” in connection with the case.
Crimes against women and children have become commonplace in Lesotho with perpetrators in most cases going scot free.
