Ntsekele in hot soup over Lipolelo murder
- files ConCourt application to block arrest, prosecution
WATER Minister Samonyane Ntsekele has filed an urgent Constitutional Court application to try and stop the police from arresting and charging him in connection with the June 2017 murder of Prime Minister Thomas Thabane’s estranged wife, Lipolelo.
Minister Ntsekele bizarrely claims in his papers filed on Friday that he cannot be charged with any crime as long as he remains in office as minister. The matter is expected to be heard this week.
Mr Ntsekele states in his application he had learnt of the police’s intentions to charge him in connection with the Lipolelo issue through his extensive interactions with Deputy Commissioner of Police (DCP) Paseka Mokete.
DCP Mokete had sent him a message on 20 March 2020, asking him to report to the police on 23 March 2020 and disclosing they intended to press charges against him.
Before getting that message, the minister had already been extensively questioned over the Lipolelo cold blooded shooting near her Ha-Masana home on the night of 14 June 2017.
Even though the police had disclosed their intentions to charge him over the Lipolelo killing, he said they had hitherto not specified what the charges would be.
He said he had agreed to postpone his rendezvous with the police from 23 March to 30 March 2020 as his lawyer was engaged elsewhere. He claims he also got seized in the planning and coordination of the fight against the Coronavirus pandemic.
His Friday application seems to suggest Mr Ntsekele sought the delay to prepare his court challenge ahead of the 30 March date.
He now argues that the police cannot charge a sitting cabinet minister. They can only prefer criminal charges against him if the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, first convinces Prime Minister Thabane to relieve him of his duties, Mr Ntsekele claims.
He therefore wants the court to declare that the police’s intentions to criminally prosecute him are unreasonable and therefore should be declared null and void.
Long considered to be Dr Thabane’s blue-eyed boy, his Constitutional Court application mirrors that of his mentor who has also approached the same court to stop his prosecution on the grounds that he cannot be tried for any crime as long as he is in office as prime minister.
Police Commissioner Holomo Molibeli; Law, Human Rights and Constitutional Affairs Minister Habofanoe Lehana; Attorney General Advocate Haae Phoofolo and the DPP Adv Motinyane are the first to fourth respondents respectively in Mr Ntsekele’s application.
“On two occasions during January and February 2020 I was requested by police officers to appear before them at police headquarters in Maseru,” Mr Ntsekele says in his founding affidavit.
“I was interviewed about a range of issues including the death of the late Lipolelo Thabane. I gave my explanation and in view of the fact that I will ultimately face criminal charges, in as much as the police have advised me that they intend to prefer such criminal charges but do not disclose the nature of such charges, I crave the honourable court that I should not detail such explanation herein, which will form part of my defence in future.”
He says the police’s plans to charge him had been disclosed in the 20 March WhatsApp message from DCP Mokete asking him to report to the police three days letter.
Mr Ntsekele claims DCP Mokete had subsequently refused to specify the charges they intended to prefer against him.
“I consulted with my lawyer on 21 March 2020, who made it clear that he (the lawyer) was involved in a criminal trial in the High Court that would only end on 27 March 2020,” Mr Ntsekele said. His lawyer advised him to request a 30 March 2020 appointment instead.
Mr Ntsekele claims he approached another lawyer who also told him he was engaged and could not assist him.
“At the same time, I got busy given that the country is dealing with issues of Coronavirus. Given my predicament I then requested the police to allow me time until 30 March 2020.
“In this regard I had a telephone discussion with DCP Mokete. He generously agreed that we could see them with my lawyer on 30 March 2020. I further requested him to disclose the type of offence I am suspected to have committed and he declined to inform me.
“I am still anxious as to what I am suspected to have done because the police have not been fair to me in that regard,” Mr Ntsekele states.
He said he remains curious about why the police are not being specific about the charges against him as he has cooperated in their investigations. On previous occasions, the police had only told him he was only going to be a witness, he claims.
“During our meetings and interviews I have always held the view that I was going to be a witness in any criminal proceedings that they intended to institute against other persons,” Mr Ntsekele said. He was thus surprised when DCP Mokete told him that he was a suspect and the police intended to lay criminal charges against him.
He was now being made to guess the nature of criminal charges the police intended to bring against him.
Nonetheless, the police had already violated Section 12 (2) (a) of the constitution requiring them to advise a criminal suspect of his constitutional right to silence.
“In fact, I would have expected them to disclose during our first and second interviews that I was a suspect and that upon completion of their investigations, they intended to lay criminal charges should there be any evidence connecting me to the criminal offence.
“The police failed to inform me of my rights. They simply advised me that they investigated criminal charges against other people and that they identified me as one of the persons who could assist them in their investigations.”
He said he could have exercised his constitutional right to silence had the police advised him at the beginning that he could be criminally charged and that he was one of the suspects.
His constitutional rights to a fair trial as contemplated in section 12 (2) (a) of the constitution had thus been wholly violated, he claims.
“I aver that the police were not entitled to leave me second guessing as to what I could have possibly done wrong, which would attract criminal liability on my part. Their failure to advise me of the nature of criminal offences they intend to prefer against me is unconstitutional to the extent that it has violated my fair trial right contemplated in section 12 (2) (b) of the constitution.”
Minister Ntsekele argues the police are not allowed to prefer criminal charges and arrest civil servants unless and until the DPP gives a directive to that effect. He says only a DPP directive triggers criminal prosecution against civil servants, implying the police were acting on their own against him without the DPP’s input.
But even if the DPP was involved in the police’s bid to prosecute him, Mr Ntsekele maintains it is all illegal.
“In the same way, I aver that a Member of Parliament and a Minister for that matter; like myself, would not be subjected to criminal prosecution unless and until they are relieved of their portfolio.
“In other words, it is unreasonable for the fourth respondent (Adv Motinyane) to have preferred criminal charges without ensuring that I was relieved of my duties as a minister. I aver that it is unreasonable for the fourth respondent to prefer the criminal charges against me while I am still a Member of Parliament.
“I aver that the fourth respondent should have sought the consent of the speaker of the National Assembly (Sephiri Motanyane) before deciding to institute criminal proceedings against me,” Mr Ntsekele further argues.
Should his application fail and he is charged, Mr Ntsekele will join Dr Thabane, First Lady ‘Maesaiah Thabane, prominent famo musician and All Basotho Convention (ABC) activist Mosotho Chakela (real name Rethabile Mokete) as the high profile personalities in the dock over the murder which occurred just two days before Dr Thabane was inaugurated for his second stint as premier.
‘Maesaiah first appeared before Maseru Magistrate Nthabiseng Moopisa on 5 February 2020 to be charged with the Lipolelo murder and the attempted murder of Lipolelo’s friend, Thato Sibolla, who was shot and injured while travelling with Lipolelo that night. ‘Maesaiah was granted M1000 bail by Acting Chief Justice ‘Maseforo Mahase the same day in proceedings since flacked as having been highly unprocedural.
Dr Thabane was also charged by but his case has been put on hold after he applied to the Constitutional Court to have the charges dropped on the grounds that he should not be tried for any crime while he remains in office as prime minister.
Mosotho Chakela remains at large and has not appeared in court yet, alongside other suspects Seabata Sello, Molefi Matima and Macheli Koeshe.
The police have since declared all four fugitives from justice and issued notices calling on the pubic to assist with information leading to their arrest. The police have also requested South African Police Service (SAPS) help to apprehend the four.