Pascalinah Kabi
ATTORNEY General Haae Phoofolo says there is overwhelming evidence against opposition leaders, Mothetjoa Metsing and Selibe Mochoboroane, adding they should stand trial for treason.
Advocate Phoofolo said Mr Metsing, who leads the Lesotho Congress for Democracy (LCD) and Mr Mochoboroane, who leads the Movement for Economic Change (MEC), should not be allowed to hide behind the clause 10 of the October 2018 government-opposition agreement to dodge prosecution for treason.
The attorney general says this in his court papers filed on Thursday in response to Messrs Metsing and Mochoboroane’s Constitutional Court application for an order to stop the treason trial at least until after the implementation of the constitutional, security sector, media, judicial and governance reforms recommended by the Southern African Development Community (SADC) in 2016.
Messrs Metsing and Mochoboroane have been charged with treason alongside former army commander Lieutenant General Tlali Kamoli and an army officer, Captain Litekanyo Nyakane.
The charges are in connection with the 30 August 2014 attempted coup against the first government of current Prime Minister Thomas Thabane. Mr Metsing was deputy prime minister at the time of the attempted coup while Mr Mochoboroane was Communications Minister and LCD secretary general. The LCD was in a coalition with Dr Thabane’s All Basotho Convention (ABC) and the Basotho National Party (BNP). 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 after the latter alleged that 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 treason trial however, failed to take off in the High Court last week on 25 February after Messrs Metsing and Mochoboroane filed an urgent Constitutional Court application for an order barring the Adv Motinyane from prosecuting them.
The duo wants the Constitutional Court to bar the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, from prosecuting them for treason on the grounds that the 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 that 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”.
The Constitutional Court has previously outlawed this particular clause 10 of the agreement between the government and the opposition. Justices Mahase, Peete and Makara declared clause 10 of the Memorandum of Understanding between the government and the coalition of opposition parties unconstitutional on 22 November 2018.
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 by fellow police officers on 26 March 2016.
In their latest constitutional application, Messrs Metsing and Mochoboroane want the three High Court judges to rescind their 22 November 2018 judgement.
However, in his answering affidavit filed on Thursday, Advocate Phoofolo said Messrs Metsing and Mochoboroane should not be allowed to hide behind the October 2018 clause as it had already been declared unconstitutional by the Constitutional Court.
Adv Phoofolo said Constitutional Court made it clear that Clause 10 “invites a vortex of uncertainty, unpredictability and irrationality”.
He said there was also a risk of selective prosecution if the prosecution of Messrs Metsing and Mochoboroane was held in abeyance on the basis that they must participate in the national reforms programme while the decision of the DPP to prosecute Lt Gen Kamoli, Capt. Nyakane, Motloheloa Ntsane and Leutsoa Motsieloa remained operational.
“The evidence that the applicants (Metsing and Mochoboroane) committed crimes in issue is overwhelming. There is virtually nothing in Clause 10 that justifies the reprieve. It has effectively been declared unconstitutional and void ab initio (from the beginning) by this honourable court,” Adv Phoofolo says in his answering affidavit.
“I agree with the (22 November 2018 Constitutional Court) judgement because the clarity of government conduct and social justice on which we all rely in organising our lives as citizens would be imperiled if an organ of state or executive in the name of the Director of Public Prosecutions could be hamstrung from performing duties of her office by political decisions which afford applicants preferential treatment.”
He argues that Messrs Metsing and Mochoboroane were supposed to be tried in an attempt to establish the extent of their active and extensive role in the perpetration of the offences set out in the indictment.
He said the treason trial was in line with recommendations by the Justice Mpaphi Phumaphi-led SADC Commission of Inquiry which recommended that all those suspecting of committed crimes in the 2014/15 period of instability in Lesotho should stand trial.
“It is my belief that everyone in this country knows that the report of His Lordship Justice Phumaphi had recommended that everyone involved in the criminal offences committed in the period under the microscope must be prosecuted using best international standards.”
He said the Phumaphi report never contemplated discrimination, selective prosecution and or temporary reprieve for Messrs Metsing and Mochoboroane.
He said Messrs Metsing and Mochoboroane had always known from around August 2014 and June 2015 that they were wanted in connection with the murder and treason.
At that time, Adv Phoofolo said the duo did not cooperate with the police and would not be arrested or be charged because they were in power and control of the state institutions.
He said this had led to the involvement of the international community in stabilising important institutions of the state such as the police by facilitating the prosecution of criminal cases of army officers involved “together with the applicants”.
Two years ago, the Sunday Express’s sister Lesotho Times publication obtained a confidential report prepared by a leading law firm commissioned by the office of the DPP to help in formulating the charges to be preferred against all the suspects in the 30 August 2014 attempted coup.
The report recommended that at least three cabinet ministers in the first Thabane coalition, which ruled from 2012 to 2015, and 15 Lesotho Defence Force (LDF) officers should face several charges including treason for their part in the 30 August 2014 events.
The law firm’s report recommended that three former ministers and 15 soldiers be charged with treason, contravention of internal security regulations, murder, attempted murder, aggravated assault kidnapping or unlawful detention, robbery and malicious or unlawful damage to property, among others.
The three former ministers, according to the law firm’s report, “met with the army officers and planned and executed the operation of 29 to 30 August 2014”.