Mohalenyane Phakela
THE Constitutional Court on Friday reserved judgement in the Lesotho Police Staff Association (LEPOSA)’s application to strike down a section of the Police Service Act which empowers the police commissioner to dismiss police officers without affording them a hearing.
Justices Sakoane Sakoane and Polo Banyane heard the arguments from the applicants and respondents’ lawyers before reserving judgement to a date that will be announced in due course. This is to give the judges time to apply their minds to the arguments and come up with a verdict.
LEPOSA, Inspector Moraleli Motloli and Lance Sergeant ‘Mathebe Motseki are the applicants. They are represented by Advocate Hoolo Nyane.
Police Commissioner Molibeli, Police and Public Safety Minister ‘Mamoipone Senauoane and outgoing Attorney General Haae Phoofolo are the first to third respondents respectively. They are represented by Adv Tekane Maqakachane.
In their court papers filed a fortnight ago, the applicants want the court to strip Commissioner Molibeli of his powers to fire them without a hearing.
They also want the court to revoke Commissioner Molibeli’s dismissal of Lance Sergeant Motseki.
They further argue that Section 31(1)(i) of the Police Act which Commissioner Molibeli has relied upon to dismiss their members should be declared unconstitutional because it is inconsistent with sections 12(8) and 18 of the constitution which provide for a fair hearing and freedom from discrimination respectively.
Section 12(8) of the constitution states that, “any court or adjudicating authority…shall be independent and impartial and where proceedings…are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time”.
Section 18 of the constitution states that, “… no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority”.
When proceedings got underway on Friday, Adv Nyane argued that Section 31(1)(i) of the Police Act which empowers Commissioner Molibeli to dismiss the officers without affording them a hearing should be struck down as it contravened their constitutional rights to a fair hearing and freedom from discrimination.
“The freedom of expression and right to fairness have been placed under threat and this law (Police Act) violates those human rights,” Adv Nyane said.
“It (Police Act) is inconsistent with sections 12(8) and 18 of the constitution which provide for a fair hearing and freedom from discrimination. When a disciplinary law takes away the rights of people, the court can declare such a law unconstitutional. This law violates the principle of fair hearing,” Adv Nyane argued.
Adv Maqakachane counter-argued by saying Commissioner Molibeli was within his rights to use Section 31(1) (i) of the Police Act to discipline police officers who had “subverted good order” within the force.
“These people (LEPOSA) were getting out of hand and they had subverted good order. It would have taken the commissioner a long time to set-up a disciplinary board but he still acted within the constraints of Section 31(1) (i) of the Police Act and there is nothing wrong with that.
“He acted within his powers which have been vested upon him by the Police Act to discipline members of the police force,” Adv Maqakachane argued.
After hearing the arguments, Justice Sakoane reserved judgement. He said both lawyers would be notified when the judgement is ready.
The hearing was initially supposed to begin on Tuesday before Justices Thamsanqa Nomngcongo, Sakoane and Banyane.
However, it failed to proceed after Justice Sakoane stated that Justice Nomngcongo could no longer proceed with the matter due to an undisclosed illness.
On that day, Justice Sakoane asked Adv Nyane and Maqakachane whether the case should proceed with just two judges. But the two lawyers objected to this, saying they wanted the ailing Justice Nomngcongo replaced so that there would be three judges as per the practice in constitutional cases.
Justices Sakoane and Banyane then adjourned the matter to Friday to give themselves time to decide whether or not the case could proceed with just two judges.
When proceedings resumed on Friday, Justice Sakoane began by ruling that the case could be heard by two judges. He said there was nothing stopping him and Justice Banyane from hearing the case because the law was silent on the issue of whether or not two judges could hear a constitutional application.
“The law in this Kingdom is silent on what should happen when one of the members (judge) is unavailable due to ill-health,” Justice Sakoane said.
“But ill-health does not constitute a legal impediment to the continuation of a hearing of a case if the remaining judges constitute a majority. Justice should not be denied or delayed by the sickness of a minority. As few as we are in the judiciary, we must step up to the plate and finish what we started for the benefit of the litigants.
“As the remaining majority, we can proceed to hear the matter to its conclusion. This means that the matter be proceeded with. It is so ordered.”
The judges also dismissed the applicants’ preliminary application to bar Adv Phoofolo from hiring a private lawyer to represent him and his co-respondents in the matter.
Adv Phoofolo had hired Adv Tekane Maqakachane to represent them. But according to Adv Nyane, the attorney general cannot hire a private lawyer to represent the state. He should either appear himself or instruct juniors from his office to handle the case.
In dismissing the application, Justice Banyane said he was “not aware of any legal authority that precludes the Attorney General from appointing any counsel from outside his chambers to represent him. This preliminary point is therefore untenable and is therefore dismissed”.
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