MASERU – Police Commissioner, Holomo Molibeli, has to date not received any communication from the Director of Public Prosecution (DPP), Advocate Hlalefang Motinyane, following submissions in court for the stay of Prime Minister Motsoahae Thabane’s murder charge until the duo has agreed on certain aspects of the process.
Molibeli told Public Eye on Wednesday this week that he has not had any discussion with Motinyane on the issue but that “maybe she is yet to communicate with me; we have not spoken about it.”
Public Eye sought Molibeli’s comment after the office of the DPP shocked the nation this week with an announcement in court that they were not ready to charge Thabane despite having issued a directive that he be charged.
The directive was issued by the DPP Motinyane.
The DPP said she was not ready to charge until certain issues are communicated with the police commissioner.
Thabane was expected to appear before court last Friday but failed to appear after his legal team reported he needed medical attention and was due for a medical consultation in South Africa.
Police have implicated him in the murder of his late wife Lipolelo Thabane and later announced their intentions to charge him for murder.
Thabane remains a suspect, despite not being charged on Monday when he appeared before the Maseru Magistrate Court, but police said he will be charged for his involvement in Lipolelo’s murder, the attempted murder of Thato Sibolla who was driving with Lipolelo on the fateful day, as well as the malicious damage to property – a car they were travelling in.
Despite appearing before Magistrate Phetise Motanyane on Monday this week, Thabane was not charged after the prosecution indicated they were not ready to go ahead and charge him because of his status.
Advocate Mpati Motšoane told Magistrate Motanyane the DPP had instructed her to inform the court that Thabane should not be charged until she (DPP) has discussed certain issues with the Commissioner of Police.
“The understanding was that the accused is not just an ordinary citizen but the prime minister of the country,” she said.
The discussion between Molibeli and Motinyane, according to Motšoane, will centre around the very fact that Thabane “is not just an ordinary citizen but a prime minister of the country and that remanding him would result in serious implications.”
“You sound like his lawyer; why did you issue a directive if you were not ready to proceed?” Magistrate Motanyane asked, to which Motšoane replied that they were compelled to appear before court following rumours that a warrant of arrest would be issued on allegations that the suspect refused to appear before court.
“We wanted to put it on record that we are not ready to proceed as yet and further that withholding charges does not necessarily change the directive,” Motšoane said.
“But there hasn’t been any application to the effect that a warrant be given against the suspect, the last time I met with his lawyer and the investigator we learned that there is a sick note, there was no way a warrant could be granted having been made aware of the status of the suspect,” Magistrate Motanyane said.
Thabane’s lawyer, Attorney Qhalehang Letsika said he was surprised to learn that the DPP was not ready to continue with the trial and said his client was ready to answer charges against him if any.
“It cannot work like that, we cannot be called to court and then when we get to court we are told to wait a bit, it is not acceptable. A lot has been said about my client over the media all over the world and now he is told to wait…” Letsika remarked.
He asked the court to refer a question to the High Court sitting as the Constitutional Court to establish whether the DPP is ready to proceed with charges against the prime minister. Letsika said the Constitutional Court should also answer three questions:
- Can a member of cabinet appointed in terms of section 88 (1) of the Constitution of Lesotho be indicted of a criminal offence during his tenure of office
- Is a sitting Prime Minister appointed in terms of section 87 (1) of the constitution be subject to criminal prosecution with the result that he could be remanded as contemplated in the Criminal Procedure of 1981?
- Does the Prime Minister appointed in terms of section 87 (1) of the constitution enjoy criminal immunity from prosecution whilst holding office?
The questions, Letsika said, will be referred to the Constitutional Court in terms of Section 128 (1) of the Constitution.
The Section states: “Where any question as to the interpretation of this constitution arises in any proceedings, in any subordinate court or in any tribunals and the court or tribunal is of the opinion that the question involves a substantial question of law, the court or tribunal may or shall if the party to the proceedings so require refer the questions to the High Court.”
In response, the prosecution said Section 128 of the Constitution that Letsika purports to rely on states that the referral can only be made where proceedings have started.
Motšoane said for the fact that the accused did not enter or a charge being read to him, it was an indication that proceedings have not started.
She argued the questions raised by Letsika have been raised prematurely because there is no accused before court, adding that the questions are not constitutional in nature.
Attorney Letsika replied that once they appeared before the magistrate, it meant a process of court has already started.
The court agreed with him and eventually ruled that there is a substantial question of law in his application. The court granted the application, allowing Thabane to approach the Constitutional Court.
“Having heard submissions from both sides and on authority of the Court of Appeal in Mothobi and another vs the Crown to which this question was referred, I find that there is indeed a substantial question of law raised…” Magistrate Motanyane ruled.