Greenlight for Metsing’s prosecution after Concourt ruling

• Metsing’s party insists he will return today despite looming criminal proceedings against him

Mohalenyane Phakela

FORMER Deputy Prime Minister Mothetjoa Metsing will have his day in court to face criminal charges after the Constitutional Court ruled as unconstitutional, a deal between the government and the opposition that would have halted criminal proceedings against him until after the completion of the multi-sector reforms process.

Mr Metsing, who is expected to return home this morning after more than a year in self-imposed exile, had been granted relief from criminal charges when the government and the opposition signed an agreement on 26 October this year.

Clause 10 of that Memorandum of 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”.

Others who are in exile and expected to return home with Mr Metsing, the deputy leader of the LCD, Tšeliso Mokhosi and the leader of the Socialist Revolution (SR) Teboho Mojapela.

Also expected to return are former police commissioner Molahlehi Letsoepa, former Director of the National Security Services (NSS), Tumo Lekhooa; Assistant Superintendent Bereng Ramahetlane who is an officer with the Lesotho Correctional Service and Mr Lebohang Setsomi who was head of procurement at the Lesotho Mounted Police Service.

Clause 10 of the government-opposition deal did not go down well with the families whose relatives were killed allegedly at the hands of security forces during the time that Mr Metsing and other opposition parties were at the helm of government.

Mr Metsing was deputy prime minister during the seven parties’ coalition that was headed by Democratic Congress (DC) leader, Pakalitha Mosisili.

During that time in 2015, Lieutenant General Maaparankoe Mahao was assassinated by fellow soldiers who claimed he had resisted arrest for allegedly being the ringleader of a mutiny against the command of the then army chief Lt-Gen Tlali Kamoli.

However, Lt-Gen Mahao’s nephews — who were with him during the incident — disputed the army’s version of the event and instead accused the soldiers of killing him in cold blood.

This year on 7 November, the Mahao and other families recently approached the Constitutional Court seeking an order to stop the government from implementing clause 10 of its agreement with the opposition on the grounds that it was unconstitutional.

The applicants were Thabo Khetheng, Maphanya Mahao, Mamonaheng Ramahloko, Malehlohonolo Nteso and Mamohau Qobete. They argued that clause 10 of the recent agreement between the government and the opposition should be declared unconstitutional as it sought to suspend any criminal proceedings against Mr Metsing and others who are implicated in the deaths of the applicants’ relatives.

The respondents were the Minster of Law and Constitutional Affairs, the Minister of Justice and Correctional Services, the leader of opposition, Mothibeli Mokhothu and Attorney General, Advocate Haae Phoofolo.

The case was consolidated with that of Mafeteng businessman, Tebello Moferefere Senatla Lejone, who on 31 October 2018 filed a case to challenge Clause 10, arguing that if criminal proceedings against Mr Metsing were halted, he should be accorded the same treatment because like the LCD leader, he is accused of fraud by the DCEO.

Mr Senatla was represented by Attorney Tumisang Mosotho while Mr Ketheng and others were represented by Advocate Khotso Nthontho.

Acting Chief Justice ‘Maseforo Mahase presided over the case together with and judges Semapo Peete and Molefi Makara.

The justices ruled that “clause 10 (of the government-opposition agreement) is unconstitutional in as far as it undermines and is inconsistent with section 99(3) of the constitution” which empowers the Director of Public Prosecutions to decide whether or not to prosecute criminal cases.

“…Clause 10 is unconstitutional in as far as it undermines and is inconsistent with section 99(3) of the constitution. In principle, the court cannot compromise the exercise of powers by the Director of Public Prosecutions (DPP). The same applies to the arresting powers assigned to the police by law and those entrusted upon the Directorate on Corruption and Economic Offences (DCEO). It can only intervene through a review against abuses of such powers or where there are unconstitutional acts.

“…Even the courts do not in principle have the power to interfere with the arresting powers of the police and the DCEO,” the Constitutional Court ruled.

The ruling paves the way for Mr Metsing to be tried for corruption.

In addition, the Mahao family wants him to answer   charges in connection with the 2015 murder of Lt-Gen Mahao.

On Thursday, the Directorate of Corruption and Economic Offences (DCEO) lawyer, Advocate Sefako Seema, told the Constitutional Court that unless directed otherwise by the Director of Public Prosecutions (DPP), the DCEO will continue with the prosecution of Mr Metsing.

“The DCEO is at a position to prosecute Mr Senatla and Mr Metsing who is one of the beneficiaries of Clause 10. The DPP in November gave the DCEO powers to prosecute Mr Metsing and to date the DPP has not told us otherwise.

“We will continue with the charges as we have been given authority to do so by the DPP and we will not halt the prosecution on the basis of Clause 10,” Adv Seema said.

For his part, the Minister of Law and Constitutional Affairs, Lebohang Hlaele, said the government had no powers to interfere with the court rulings.

“This issue of Clause 10 is two folded in that the courts interpret it constitutionally while we are handling the matter politically.

“Our fervent hope is that we continue as planned in order to reach political settlement on behalf of Basotho.

“However, we cannot interfere with the courts for the government is guided by the rule of law. The Constitutional Court has ruled against Clause 10 therefore we cannot nullify the decisions of the court nor act against it,” Mr Hlaele said.

And although the Constitutional Court invalidated clause 10 with its Thursday ruling, the court however, advised the government, opposition and other stakeholders to seek a political solution to the matter regarding the prosecution of Mr Metsing and others.

“…We reiterate our suggestion that the parties should consider exploring a possible political solution under the facilitation of SADC and the Christian Council of Lesotho. The latter has for decades demonstrated its ability to neutrally guide the nation under mercy of the Almighty God towards resolving politically oriented national challenges. Unfortunately, its word is hardly ever heeded to.  Perhaps, it is because it comprises of members of the clergy who happen to be locals,” the Constitutional Court said in the judgement that was delivered by Justice Makara.

The applicants had asked respondents to “show cause if any, why the clause 10 of the Memorandum of Agreement between the government and the coalition of opposition parties shall not be declared unconstitutional as it violates…the constitution by virtue of suspending criminal proceedings against Honourable Metsing and other similarly placed persons in exile during national dialogue and reforms”.

“They (the respondents) should further explain why clause 10 should not be declared unconstitutional…to the extent that it seeks to hamstring the powers of the Director of Public Prosecutions by according preferential treatment to Honourable Metsing and other similarly placed persons in exile.

In his founding affidavit, Thabo Khetheng, the father of Police Constable Mokalekale Khetheng who was allegedly murdered by his colleagues in 2016, stated that the High Court should block the implementation of the clause 10 because “it is a one-sided agreement which tends to favour politicians and totally neglects and/or abandons victims of heinous crimes”.

Meanwhile the LCD says that despite the court verdict, Mr Metsing and deputy leader Tšeliso Mokhosi are still expected to return to Lesotho this morning from exile in South Africa.

Mr Metsing’s return will enable him to participate in the National Dialogue on the multi-sector reforms which gets underway in Maseru. He will take his place alongside other leaders of political parties in government and in the opposition at the dialogue which is expected to come up with an agenda for the constitutional, security sector, governance, judicial and media reforms that were recommended in 2016 by the Southern African Development Community (SADC).

LCD spokesperson Mr Teboho Sekata said, “Mr Metsing will be coming home as the leader of LCD and former Deputy Prime Minister of Lesotho and is therefore entitled to security from the government”.

LCD deputy spokesperson Apesi Ratšele said they had obtained a permit from the police to hold a procession to welcome their leaders.

Party supporters are expected to throng the Maseru border before proceeding to an event set for Setsoto Stadium later in the day.

Mr Metsing fled Lesotho in August 2017 citing an alleged plot to assassinate him. The government has nevertheless refuted his claims, insisting that he fled to escape prosecution for corruption.