Moorosi Tsiane
THE Internal Security (Declaration of Unlawful Organisation), Notice No. 40 of 2024, which criminalises famo groups, is being challenged in court by a soldier married to a member of the outlawed Terene group.
The female soldier, Lineo Kibinye, wants the law scrapped on the grounds that it is unconstitutional, arguing it violates Section 16 of the Constitution, which guarantees freedom of association.
This is the first time the Internal Security (Declaration of Unlawful Organisation), Notice No. 40 of 2024 is challenged in court since it was enacted into law on 10 May 2024 by Minister of Local Government, Chieftainship, Home Affairs and Police, Lebona Lephema, declaring several famo gangs, including Terene, illegal.
Ironically, it is not being challenged by any famo group or leader, but a soldier, expected to help in the implementation of the law.
Ms Kibinye has, through his lawyer Advocate Fusi Sehapi, filed the constitutional case seeking to nullify the declaration of famo groups as unlawful organisations and to halt further arrests based solely on association with such groups.
Ms Kibinye is also challenging the Lesotho Defence Force (LDF)’s decision to charge her for being married to Moitheri Kubutu, a member of the Terene group. She argues that her arrest and subsequent charges are not only unjustified but also violate her constitutional rights.
It is not clear which Terene group Kubutu subscribes to as there are two of them, Terene ea Khosi Chakela and Terene ea Khosi Mokata.
Kubutu was, in September 2024, charged alongside Tumaole Mokhethi for the murder of three men and a woman, as well as the attempted murder of two men in Matelile, Mafeteng, on 31 August 2024.
Following his arrest, Ms Kibinye was also detained by members of the LDF and the Police’s Special Operations Unit (SOU) under Operation Fiela, a joint initiative aimed at eradicating famo-related violence and confiscating illegal firearms.
In court papers filed last week, she states that on 8 September 2024, while undergoing training at Makoanyane Barracks in Maseru, she was summoned by her superiors and informed of her arrest under Operation Fiela.
“They arrested me without giving any reason and escorted me from the Women’s Drill at the Makoanyane Training Institute to Mr Kubutu’s house in Lithabaneng, Maseru Urban Area,” Ms Kibinye states.
“There, we waited for Mr Kubutu, who later arrived in a Toyota Quantum escorted by an LDF van and Criminal Investigation Department (CID) officers. He was in the company of other arrested persons. We were then directed into his rented home, where Operation Fiela members, composed of soldiers and police, conducted an illicit search despite our objections.”
Ms Kibinye says they resisted the search, arguing there was no warrant. However, they were told that one Inspector Molise, due to his rank, was a “warrant himself”, and that a search warrant was unnecessary.
“Two hats and one jacket bearing Terene colours, which I didn’t know about, were found hidden in the house. I explained that I stay in the barracks and only visit Mr Kubutu occasionally. It is LDF policy that all members reside in the barracks.
“Even if those items were prohibited, they were stored privately and not being used publicly. Mr Kubutu admitted ownership of the items, yet I was arrested over them.”
She claims she was handed over to the Operation Fiela team and taken to Police Headquarters, where she was interrogated about her husband and the Terene group.
Ms Kibinye further alleges that she was held in solitary confinement for nine days under deplorable conditions, denied access to her family and legal counsel.
“During my entire detention, I was subjected to inhumane and degrading treatment. I was kept in isolation, deprived of adequate food, hygiene products, and exercise.”
She was later charged under LDF disciplinary laws for associating with a famo gang member and for allegedly bringing the force into disrepute. She is currently suspended from duty pending the outcome of the disciplinary process. Ms Kibinye insists the charges are baseless, discriminatory, and in violation of her constitutional rights.
Ms Kibinye also wants the court to nullify Internal Security Notice No. 40 of 2024, claiming it violates the Constitution and is therefore invalid.
“The declaration of Terene and other famo groups as unlawful organisations, without due process or affording members the right to be heard, violates the principles of natural justice and the Constitution.”
Ms Kibinye also argues that famo music is deeply rooted in Basotho culture and has been unfairly vilified.
“Famo is a traditional form of musical expression that forms part of Basotho identity and heritage. To declare its practitioners as criminals without evidence is to attack our culture.”
She contends that her persecution is solely due to her marital relationship with Mr Kubutu, not any unlawful actions of her own.
“I am being punished for who I am married to, not for what I have done.
“Three witnesses were brought against me, but none could prove my guilt. Their evidence was speculative and opinion-based, not factual. I was not allowed to call any witnesses. I was essentially charged for marrying a partner of my own choice.”
Ms Kibinye also claims that her marriage to Kubutu had been approved by the LDF.
“My immediate supervisor, Sergeant Kelane, granted me two weeks’ leave to marry Mr Kubutu after investigations confirmed he was a member of Terene. My written application was stamped by my Chief. LDF cannot now turn around and punish me for a decision they approved.”
She argues that the charges violate several constitutional rights, including the right to dignity under Section 8, the right to private and family life under Section 11, the right to a safe and healthy environment under Section 30(b), and the right to a fair trial and protection against discrimination based on marital status under Section 18(1), (2), and (3).
“The legal effect of the charges is to either imprison me or discharge me from the LDF, for an act that is not an offence under any Lesotho law, and not attributable to me.”
