Mohalenyane Phakela
NEITHER Police Commissioner Holomo Molibeli nor the Lesotho Police Staff Association (LEPOSA) secured an outright victory in their Constitutional Court battle on Thursday.
LEPOSA won part of the battle after the Constitutional Court bench comprising of Justices Sakoane Sakoane and Polo Banyane ruled that Commissioner Molibeli cannot fire police officers without affording them a hearing.
The court however, rejected LEPOSA’s plea to nullify section 31(1)(i) of the Police Act which Commissioner Molibeli relied on to dismiss LEPOSA’s national treasurer Lance Sergeant ‘Mathebe Motseki on 10 August 2020.
He has also initiated processes to sack LEPOSA’s secretary general Inspector Moraleli Motloli on the basis of the same section.
The militant police union had petitioned the court to revoke Commissioner Molibeli’s dismissal of Lance Sergeant Motseki. They also wanted the court to block Commissioner Molibeli from dismissing Inspector Motloli.
They further wanted an order declaring as unconditional the said section of the police act on the grounds that it was 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”.
The two sides have been at loggerheads over what the police union views as Commissioner Molibeli’s bias and ineptitude in handling police grievances. LEPOSA alleges that since taking charge in August 2017, Commissioner Molibeli has been a very incompetent police boss. They accuse him of favouritism, among other things, citing his “unprocedural” promotion of his “blue eyed boys” like Deputy Police Commissioner (DCP) Paseka Mokete and Assistant Police Commissioner (ACP) Beleme Lebajoa.
LEPOSA also accuses him of failing to deal decisively with the thorny issue of police brutality. It has petitioned Prime Minister Moeketsi Majoro to fire him.
Commissioner Molibeli has however, fought back by invoking section 31(1)(i) of the Police Act to dismiss LEPOSA’s Sergeant Motseki.
Commissioner Molibeli fired Lance Sergeant Motseki for statements she made which allegedly tarnished the image of the police command.
Speaking in July this year at the funeral of Lance Corporal Thabang Molelekoa in Mafeteng, Lance Sergeant Motseki accused the police authorities of transferring some police officers as punishment for opening a case against former First Lady ‘Maesaiah Thabane for allegedly assaulting a Maseru man at State House in January 2019.
Lance Sergeant Motseki also accused the police command of failing to arrest Deputy Police Commissioner (DCP) Paseka Mokete after a female junior police officer accused him of sexual assault in April 2020. The case is now before the courts.
On 30 July 2020, Commissioner Molibeli ordered Inspector Motloli to “show cause” why he should not be dismissed over LEPOSA’s petition to Dr Majoro to fire him (Molibeli).
This prompted LEPOSA, Inspector Motloli and Lance Sergeant Motseki to file the Constitutional Court application to stop the police boss in his tracks.
Commissioner Molibeli, Police and Public Safety Minister ‘Mamoipone Senauoane and former Attorney General Haae Phoofolo were the first to third respondents respectively.
Reading the judgement on Thursday, Justice Sakoane said Commissioner Molibeli cannot fire police officers without affording them a hearing. He said LEPOSA had a right to freely express itself in a responsible manner. He ordered Commissioner Molibeli to ensure that LEPOSA members were accorded a fair hearing before any decision to fire them was made.
He however, dismissed LEPOSA’s petition to nullify section 31(1)(i) of the Police Act.
“The claim for discriminatory treatment is not made and must be rejected,” Justice Sakoane said, adding, “However, the request of police officers for an oral hearing must always be considered”.
“The applicants have not succeeded in their main application to have section 31(1) of the Police Act struck down. Their success is limited to a claim to a fair hearing and protection of freedom of association and expression.
“It is declared that LEPOSA’s letter to the Prime Minister and utterances at the funeral are the official utterances of LEPOSA made in the exercise of freedom of association and expression.
“LEPOSA members have a right to a fair hearing and freedom of expression and association. These rights and freedoms they enjoy like every civilian does. The only limitation is that these freedoms must be exercised responsibly.
“If the LMPS management is intolerant of legitimate criticism by police officers, tensions between LEPOSA and LMPS management will always be there.
“The impression must not be created that the commissioner is averse to an oral hearing. The removal of police officers must be done through a fair process.
“What is not legally permissible is the weaponisation of the institutional process and associational platforms to undermine discipline or suppress legitimate conduct, criticism and demands.”
Justice Sakoane said they could not rule on the petition for the revocation of Lance Sergeant Motseki’s dismissal because the latter had already filed a case challenging the decision in the High Court.
“In view of the fact that the third applicant (Lance Sergeant Motseki) is already dismissed and her dismissal is a subject of another court, this court will not pronounce itself on her fate.”
Justice Sakoane also gave Commissioner Molibeli greenlight to continue with disciplinary processes against Inspector Motloli.
“The commissioner may proceed with an inquiry against the second applicant (Inspector Motloli). In conducting the inquiry, the applicants’ request for an oral hearing must be considered.
“In conclusion the obvious must be said. LEPOSA is a lawfully registered body. But it does not manage the police service. The commissioner manages the police service but he does not manage LEPOSA,” Justice Sakoane said.