Mohalenyane Phakela
FORMER Deputy Prime Minister Mothetjoa Metsing, former army commander, Lieutenant General Tlali Kamoli, and former Communications, Science and Technology Minister Selibe Mochoboroane cannot avoid treason charges on the basis of an October 2018 political agreement signed by the governing coalition and the opposition.
The only way they can avoid trial is if Attorney General, Advocate Haae Phoofolo, advises the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, to hold the charges in abeyance or drop them altogether.
This according to Acting Chief Justice ‘Maseforo Mahase and fellow Constitutional Court judges, Semapo Peete and Molefi Makara.
This follows submissions by the trio’s lawyers to the Constitutional Court judges on Thursday for the court to bar the state from prosecuting them for treason charges in connection with the 30 August 2014 attempted coup against the first government of current Prime Minister Thomas Thabane.
Lt-Gen Kamoli, Messrs Metsing and Mochoboroane and an army officer, Captain Litekanyo Nyakane, were on Tuesday expected to stand trial for treason but the much-anticipated trial failed to take off in the High Court.
This after Messrs Metsing and Mochoboroane filed an urgent Constitutional Court application for an order barring the Director of Public Prosecutions, Advocate Hlalefang Motinyane, from prosecuting them for treason on the grounds that an October 2018 agreement between the governing coalition and the opposition offers them immunity from prosecution for any crime until after the completion of the multi-sector reforms.
The October 2018 agreement paved way for Mr Metsing and other opposition leaders, who had been in exile, to return to Lesotho to participate in the processes towards the implementation of constitutional, security sector, media, judicial and governance reforms recommended by the Southern African Development Community (SADC) in 2016.
Among other things, clause 10 of the 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”.
Messrs Metsing and Mochoboroane filed their latest application on Monday to stop the treason trial on the basis of clause 10 of the agreement between the government and the opposition despite that the Constitutional Court previously outlawed this particular clause, clearing the way for their trial.
A Constitutional Court bench comprising of Justices Mahase, Peete and Makara, on 22 November 2018 declared clause 10 of the agreement unconstitutional.
This after the late Police Constable (PC) Mokalekale Khetheng’s father, Thabo Khetheng, had petitioned the court to declare the clause unconstitutional saying self-serving agreements between politicians could not outstrip the constitution.
PC Khetheng was killed allegedly by fellow police officers on 26 March 2016. Former Defence and National Security Minister, Tšeliso Mokhosi has also been charged with PC Khetheng’s murder.
In their Monday application filed on, Messrs Metsing and Mochoboroane asked the Constitutional Court to rescind its November 2018 order which declared clause 10 of the agreement unconstitutional.
The DPP, Minister of Law, Minister of Justice and Correctional Services, the Attorney General and the Registrar of High Court are all cited as respondents in the application.
Prosecutor, Adv Shaun Abrahams, conceded in the court that the prosecution could not proceed with the treason charges until the Constitutional Court had pronounced itself on Messrs Metsing and Mochoboroane’s latest application.
Botswana judge Onkemetse Tshosa, who was supposed to preside over the treason trial, then postponed proceedings to 5 March 2020.
Justice Tshosa asked Messrs Metsing and Mochoboroane’s lawyer, Advocate Motiea Teele, to meet the three judges who presided over Mr Khetheng’s November 2018 application to set a date for hearing their latest application.
And on Thursday, the Constitutional Court bench comprising of Justices Mahase, Peete and Makara stated that Lt-Gen Kamoli, Captain Nyakane, Messrs Metsing and Mochoboroane cannot avoid treason charges on the basis of clause 10 of the 2018 government-opposition agreement as they had already declared the said clause unconstitutional.
The judges said the courts could endorse any policies or agreements by politicians which violated the constitution which was the supreme law of the land.
Justice Peete stated that section 2 and section 99(3) of the constitution barred the courts from ordering the DPP to stay or withdraw the charges. Section 2 of the constitution states that “the constitution is the supreme law of Lesotho and if any other law is inconsistent with the constitution, that other law shall, to the extent of the inconsistency, be void”. Section 99(3) states that “the powers of the DPP… may be exercised by her in person or by officers subordinate to her acting in accordance with her general or specific instructions. Section 98(2)(a) states that “the Attorney General shall provide legal advice to the government” (b) shall exercise ultimate authority over the DPP’s prosecutions”.
Justice Peete said, “Section 2 of the constitution states that any decision which is inconsistent with any of the clauses of the constitution is null and void.
“Any policy, no matter how popular it may be, should not supersede and must be subject to constitutional constraints. If it is inconsistent with the constitution then it does not pass the test. The constitution is the country’s bible and each policy must pass the constitutional test.
“Section 99(3) states that it is only the DPP or her office which may institute criminal proceedings while section 278 of the Criminal Procedure and Evidence Act vests powers into the DPP to withdraw charges but that does not stop her from reinstituting the same charges later on. The Attorney General on the other hand could advise the government or direct the DPP to withdraw charges against Mr Metsing and similarly placed persons.”
Justice Makara concurred, saying the courts could not act contrary to the constitution and he therefore advised the applicants (Messrs Metsing and Mochoboroane) to approach Adv Phoofolo and Adv Motinyane to hold the treason charges in abeyance or to withdraw them.
“We have a profound problem emanating from the separation of powers. Some politicians tend to believe the parliament is supreme whereas every law or policy must be tested against section 2 of the constitution and not parliament.
“This is not a matter for courts to determine because courts work in a technographic manner prescribed by the constitution. This matter requires political wisdom not the courts. Reconciliation may be a good thing and on grounds of national interest and lasting peace, the applicants may approach the Attorney General to negotiate. Attorney General and the DPP may talk to either hold the charges in abeyance or withdraw them,” said Justice Makara.
On her part, Justice Mahase asked why Messrs Metsing and Mochoboroane waited more than 13 months to seek rescission of the 22 November 2018 Constitutional Court judgement nullifying clause 10 clause 10 of the 2018 government-opposition agreement. She also asked if at all the Attorney General was ever consulted when clause 10 was drafted by the politicians.
It was then that the Constitutional Court bench advised Messrs Metsing and Mochoboroane to approach the Attorney General, Adv Phoofolo to see if he could advise DPP Motinyane to hold the treason charges in abeyance until after the implementation of the multi-sector reforms or to completely drop them altogether.
Prior to the ruling, Adv Abrahams, who represented the DPP, said that Mr Metsing and Mr Mochoboroane should stand trial and that it would be discriminatory not to charge them while their co-accused (Lt-Gen Kamoli and Captain Nyakane) are languishing in prison.
“The court order (of 22 November 2018 nullifying clause 10) is final and section 21(1) of the constitution is clear that nothing should be done either by parliament or anyone, to contradict the constitution. Everyone was aware that clause 10 was declared unconstitutional. We cannot also have selective prosecution as that would be discriminatory and on top of that, the other accused are in prison awaiting these treason charges therefore we cannot hold the matter in abeyance while they stay in prison,” argued Adv Abrahams.
Adv Christopher Lephuthing, who represented the Adv Phoofolo, insisted that the Attorney General wanted Messrs Metsing and Mochoboroane prosecuted.
“The Attorney General pronounced himself a long time ago when the constitutionality of clause 10 was determined by this court. My instructions are that he has effectively advised the DPP to prosecute,” Adv Lephuthing said.
However, Adv Napo Mafaesa, who appeared on behalf of Messrs Metsing and Mochoboroane, insisted that his clients wanted to continue with the application for the rescission of the Constitutional Court’s 22 November 2018 order which declared clause 10 unconstitutional.
“The court did not have benefit of arguments when it wrote the judgement due to the mutual agreement by counsels who appeared then on unconstitutionality of clause 10. We wish to continue with the rescission application as we believe, given a chance, we will convince the court otherwise.
“Clause 10 does not mean Mr Metsing should not be prosecuted but that the charges be held in abeyance during the reforms process. The government only changed its mind on clause 10 last week when it decided to institute the treason charges against the applicants hence, we are only approaching the court for rescission now,” Adv Mafaesa said.
If the Attorney General or the DPP do not change their minds to stay or drop the treason charges, the Constitutional Court will have to hear to hear arguments from Messrs Metsing and Mochoboroane’s legal team as well as opposing submissions from the respondents’ side on 31 March 2020.
The DPP, Minister of Law, Minister of Justice and Correctional Services, the Attorney General and the Registrar of High Court are all cited as respondents in the application.
Lt-Gen Kamoli, Captain Nyakane and Messrs Metsing and Mochoboroane are facing the treason charges in connection with the 30 August 2014 attempted coup against the first government Dr Thabane. Mr Metsing, who leads the opposition Lesotho Congress for Democracy (LCD), was deputy prime minister at the time of the attempted coup while Movement for Economic Change (MEC) leader, Mr Mochoboroane, was Communications Minister and LCD secretary general at the time. Lt-Gen Kamoli had been fired by Dr Thabane from his post as army commander on 29 August 2014 before allegedly orchestrating the 30 August 2014 attempted coup allegedly with the support of Messrs Metsing, Mochoboroane and Captain Nyakane. Dr Thabane and Mr Metsing had fallen out with the latter alleging he was not being consulted on key decisions.
Lt-Gen Kamoli and Captain Nyakane are already in prison charged with the murder of police Sub-Inspector Mokheseng Ramahloko which occurred on 30 August 2014 during the attempted coup. In the murder trial, they are charged along with other soldiers, Lance Corporal Motloheloa Ntsane and Lance Corporal Leutsoa Motsieloa.
The murder and treason trials had been set to run from 9 to 20 March 2020 with Justice Onkemetse Tshosa as the presiding judge.
Even though the judges stated that the only way Mr Metsing and others can avoid trial is if Adv Phoofolo advises the DPP to hold the charges in abeyance, the judges will still hear the rescission application in the Constitutional Court on 31 March 2020.
