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‘SADC decisions binding on Lesotho’

Mohalenyane Phakela

LESOTHO is bound by Southern African Development Community (SADC) decisions and should therefore obey the regional body’s directive not to prosecute politicians, Mothetjoa Metsing and Selibe Mochoboroane, their lawyer, Advocate Motiea Teele, has argued.

Messrs Metsing and Mochoboroane face treason charges treason alongside former army commander Lieutenant General Tlali Kamoli and an army officer, Captain Litekanyo Nyakane, over the 30 August 2014 attempted coup against the first government of former Prime Minister Thabane.

The trial was initially supposed to begin on 25 February 2020. However, it was postponed to allow the Constitutional Court to rule on the duo’s application to stop the state from trying them in line with a SADC-brokered October 2018 agreement between former Prime Minister Thomas Thabane’s government and the opposition to hold in abeyance all trials of politicians until after the implementation of the multi-sector reforms.

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 struck down Clause 10 of that agreement as unconstitutional in its 22 November 2018 judgement but the two politicians want the court to rescind its own judgement.

The Director of Public Prosecutions, (DPP) Adv Hlalefang Motinyane, has argued that the judiciary is independent and not bound by political decisions like the 2018 agreement.

One of the judges hearing the duo’s applications, Justice Molefi Makara on Tuesday echoed Adv Motinyane’s sentiments, saying SADC cannot dictate terms to Lesotho’s judiciary as it is an independent institution.

Justice Makara said SADC could say “whatever it wished” on critical issues like the October 2018 agreement but Lesotho’s judges would pass their judgements on the basis of the law and not the regional body’s directives.

But in his submissions in the ongoing hearing on Thursday, Messrs Metsing and Mochoboroane’s lawyer, Adv Teele implored the court to stop the trial of the duo in line with a SADC directive, issued to then Prime Minister Thomas Thabane in March 2020.

According to Adv Teele, Lesotho is bound by the SADC decisions as per the SADC Treaty which Lesotho signed in 1992. He said after all Lesotho invited SADC to intervene in its internal problems and therefore it cannot cherry pick which SADC directives to implement and which ones to discard.

“The decisions of SADC are not something that can be ignored as it is a matter of international law,” Adv Teele argued.

“Clause 10 of the SADC-brokered October 2018 agreement was agreed in line with the SADC Treaty hence it is enforceable in Lesotho.

“The October 2018 agreement was entered into because there was stalemate after the opposition said it would not participate in the reforms if there was no commitment from government for deferment of criminal prosecutions of its leaders.

“The Director of Public Prosecutions (DPP), Hlalefang Motinyane and Attorney General (AG) Haae Phoofolo cannot rely on local, municipal laws to evade their obligations as the government’s lawyers. A party may not invoke provisions of its own laws in order not to obey its own obligations in regard to the SADC Treaty. Lesotho is one of the founding members who signed the SADC Treaty in August 1992. When a government makes an undertaking, it keeps that obligation.

“The DPP and AG cannot be picky on which SADC decisions they implement. One moment they say they are pushing the treason trial as per SADC recommendation and the next moment they say that SADC cannot interfere with their laws when it says they must hold the charges in abeyance. SADC was invited by Lesotho to intervene in the political deadlock, hence it (SADC) brokered the Memorandum of Understanding.

“What we must understand is that the (October 2018) agreement is a subject of an international law signed under the SADC Treaty. We live in a community of countries therefore we should be harmonisation of international affairs. We are not an island,” Adv Teele argued.

The case continues tomorrow. Adv Teele is expected to conclude his submissions and thereafter, DPP Motinyane’s lawyer, Adv Christopher Lephuthing, will take to the stand to oppose.

The matter is before Justices Makara, Semapo Peete and Acting Chief Justice ‘Maseforo Mahase.

The same judges nullified clause 10 of the October 2018 agreement in their 22 November 2018 judgement.

This after the late Police Constable (PC) Mokalekale Khetheng’s father, Thabo Khetheng, petitioned the court to declare it unconstitutional saying self-serving agreements between politicians could not outstrip the constitution. PC Khetheng was killed by fellow police officers on 26 March 2016.

Opposition politician Tšeliso Mokhosi is one of those accused of his murder. The case is already before the court but charges against Mokhosi could be held in abeyance if the Constitutional Court rules in favour of Messrs Metsing and Mochoboroane.

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