Mohalenyane Phakela
IN just over a week on 23 November, former Deputy Prime Minister Mothetjoa Metsing and Development Planning Minister, Selibe Mochoboroane, will join former army commander, Lieutenant General Tlali Kamoli and another solider, Captain Litekanyo Nyakane, in the dock for their long-awaited treason trial.
This after the Constitutional Court delivered its judgement upholding its November 2018 decision to nullify clause 10 of the SADC-brokered October 2018 government-opposition agreement which stopped the trials of Messrs Metsing, Mochoboroane and other politicians until after the implementation of the multi-sector reforms.
The two politicians will now join Lt-Gen Kamoli and Captain Nyakane and two other soldiers, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa, in the treason trial which stems from the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
Botswana Judge Onkemetse Tshosa set the trial date during Lt-Gen Kamoli, Captain Nyakane, Lance Corporals Ntsane and Motsieloa’s court appearance in connection with the murder of Police Sub-Inspector Mokheseng Ramahloko.
Sub-Inspector Ramahloko was shot and killed by soldiers at the Police Headquarters in Maseru during the attempted coup on 30 August 2014.
The attempted coup, which involved pre-dawn raids on police stations in Maseru by members of the Lesotho Defence Force (LDF), was in retaliation for Mr Thabane’s decision to sack Lt-Gen Kamoli and replace him with Lt-Gen Maaparankoe Mahao.
Lt-Gen Mahao was later assassinated in June 2015 by LDF officers who claimed that he was shot while resisting arrest for allegedly leading a mutiny against the command of Lt-Gen Kamoli who had been reinstated by the Pakalitha Mosisili-led former seven parties’ government which replaced the Thabane administration in February 2015.
Lt-Gen Kamoli and his co-accused in the Ramahloko murder have been in remand prison since their arrest in 2017.
The four appeared before Justice Tshosa in connection with the Ramahloko murder but the case was postponed to 23 November 2020 to allow the state to add Messrs Metsing and Mochoboroane to the list of accused persons.
The murder case will now be heard jointly with the treason trial. This because Sub-Inspector Ramahloko was allegedly murdered by the suspects in the course of their attempted coup.
Justice Tshosa set the 23 November trial date after Crown Counsel, Advocate ‘Naki Nku, asked for time to join Messrs Metsing and Mochoboroane to the list of accused persons after they lost their bid to avoid prosecution.
“The constitutional case in which the people (Metsing and Mochoboroane) who are supposed to be joined had launched has been finalised and now out of the way. This means we can proceed. The indictment is ready and what is left is for the crown to join the other two. I am going to work on that and I ask that we be given until 23 November to join them to the treason case,” Adv Nku submitted.
Justice Tshosa then postponed the matter to 23 November to allow the crown to join Messrs Metsing and Mochoboroane to the treason case.
The treason trial had initially been slated for February but it failed to take off after Messrs Metsing and Mochoboroane on 25 February 2020 filed a Constitutional Court application for an order barring the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, from prosecuting them.
The argued that the October 2018 agreement between the previous Thabane-administration and the opposition barred the state from trying politicians until after the completion of the reforms.
Clause 10 of that 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”.
The Constitutional Court has previously outlawed this particular clause 10 after the late Police Constable (PC) Mokalekale Khetheng’s father, Thabo Khetheng, petitioned the court to declare it unconstitutional saying self-serving agreements between politicians could not outstrip the constitution. PC Khetheng was killed by fellow police officers on 26 March 2016.
But Messrs Metsing and Mochoboroane petitioned the same court on 25 February 2020 to rescind its 22 November 2018 judgement outlawing Clause 10.
They also argued that despite being interested parties, they had not been cited as respondents in Mr Khetheng’s November 2018 application which was granted by the Constitutional Court.
Their constitutional case was heard to finality on 11 August 2020 by Justices ‘Maseforo Mahase, Molefi Makara and now retired Semapo Peete. These are the same judges who heard the initial application by Mr Khetheng in 2018.
In the judgement delivered on Thursday, the Constitutional Court bench ruled that Messrs Metsing and Mochoboroane ought to have been joined to Mr Khetheng’s 2018 application.
The court however, dismissed their application to stop the state from trying them. It rejected their argument that the 2018 government-opposition agreement was an international agreement brokered by SADC and therefore superseded any local law which prescribed that they be tried for their alleged crimes.
The judges ruled that for any international agreement to be binding in Lesotho, it would have to be first domesticated into local law through an act of parliament.
Reading the judgement on behalf of the court bench, Justice Makara said, “for international law to create rights and obligations and be executable in Lesotho, it must be adopted through an act of parliament”.
“It matters not whether the law comes from the United Nations, it must be ratified and indigenised by parliament through an act. Even if it (2018 government-opposition agreement) qualified to be a treaty, it would still have to be indigenised by an act of parliament. The politicians should have done so …Clause 10 is once again pronounced unconstitutional,” Justice Makara said.
The ruling thus clears the way for Messrs Metsing and Mochoboroane to be tried alongside Lt-Gen Kamoli and others for treason. They can also be tried for any other crimes the state decides to charge them with.
The verdict is no doubt, a heavy blow for Mr Metsing who fled the country in 2017 and only returned a year later after the government-opposition agreement to stay the trials of politicians until after the reforms.
He had fled the country citing an alleged plot by the previous government to assassinate him. This was disputed by the Thabane government which said he had fled to avoid prosecution for corruption in connection with the awarding of a M120 million contract to Big Bravo (Pty) Ltd to refurbish roads in Matala Ha-Leqele, Maseru in 2013.
It remains to be seen if the state will also try him for corruption.
Mr Metsing told this publication that he would meet with his lawyers to discuss whether or not to challenge the latest court judgement.
Mr Mochoboroane’s mobile phone rang unanswered when this publication called him for comment yesterday.