Judgement reserved in Metsing, Mochoboroane case

Mohalenyane Phakela

FORMER Deputy Prime Minister Mothetjoa Metsing and current Development Planning Minister Selibe Mochoboroane will have to wait longer to learn if their bid to avoid trial for treason succeeds.

This after Chief Justice Sakoane Sakoane on Thursday reserved judgement in their High Court application from joining them to the trial alongside former army commander, Lieutenant General Tlali Kamoli and three other soldiers.

After hearing arguments from the state and the duo’s lawyers, Justice Sakoane reserved judgement to a date to be announced, saying he “had to first consider the submissions made” by both sides.

During the Thursday proceedings, Messrs Metsing and Mochoboroane’s lawyer, Advocate Motiea Teele, argued that his clients could not be joined to a trial which was already underway. He said they could not be joined to the trial on new charges different from those which their fellow accused had been indicted when they were first charged in January 2018.

This was in reference to the fact that Lt-Gen Kamoli, Captain Litekanyo Nyakane and Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa were first charged with the murder of police Sub-Inspector Mokheseng Ramahloko which occurred during the attempted coup against the first government of former Prime Minister Thomas Thabane on 30 August 2014.

The Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, later amended the charge sheet to include a treason charge. She also moved to join Messrs Metsing and Mochoboroane to the trial.

However, the treason trial failed to proceed after the duo filed a 25 February 2020 constitutional application to stop the state from trying them on the grounds that a clause 10 of an October 2018 SADC-brokered government-opposition agreement shielded them and other politicians from prosecution until after the implementation of the multi-sector reforms.

This was despite that the Constitutional Court had struck down clause 10 in its November 2018 judgement passed 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.

Messrs Metsing and Mochoboroane were dealt a massive blow on 12 November 2020 when the Constitutional Court upheld its November 2018 decision to nullify clause 10. In upholding their earlier decision, the judges said the clause could only become legally binding in Lesotho if it was domesticated into local law through an act of parliament.

Not to give up, the duo immediately filed a fresh application in the High Court to stop the state from trying them. This time, they argued that they could not be joined to a case that was already in progress. They also argued that they could not be tried in the High Court without first being remanded in the magistrates’ court as demanded by the Criminal Procedure and Evidence Act.

“The principal problem is that there has been disregard of provisions of section 92 of the Criminal Procedure and Evidence Act which requires that the accused persons cannot be summary charged in the High Court except after they have been committed by a magistrate who would have conducted a preparatory examination,” Adv Teele argued on Thursday.

“The decision to indict the applicants was made in February this year. All the time before that, the prosecution had been asking the trial judge to postpone the matter to allow them to secure additional statements. It cannot be that when the trial is in court, then the prosecution is busy with investigations.

“That creates complications for a trial which is already in court. Investigations in this country are not prosecution driven. That is not the role of the DPP.  Her role is impartiality and not to engage in investigations. She needs to act on statements submitted by the police and not dabble in investigations herself. She cannot include people when the trial has started.

“She should have not called for more charges when much had already happened in the trial. She should have proceeded with the existing charges (of murder) and not bring additional ones (treason). The joining of the accused is done at the magistrates’ court before the case comes to the High Court,” Adv Teele further argued.

On his part, the DPP’s lawyer, Adv Christopher Lephuthing, conceded that the procedure to join Messrs Metsing and Mochoboroane was irregular in that they had not been before the magistrates’ court.

“A preparatory examination has not been done in this case and we concede that. However, the DPP is working under conditions which are rather peculiar.

“Here we are dealing with two people (Metsing and Mochoboroane) who are refusing to be joined to a case. In February when they were supposed to be joined, they never raised the question of the propriety of the indictment but only said they should be tried after the national reforms.

“Eleven months after they lost their bid to wait for reforms, they now want to raise new objections,” Adv Lephuthing argued.

Justice Sakoane then reserved judgement to give himself time to consider the arguments made by both sides. He said he would announce in due course when judgement would be delivered.