‘You are throwing Kamoli under the bus’


 DPP chides Metsing and Mochoboroane


MASERU – Opposition leaders Mothetjoa Metsing and Selibe Mochoboroane are throwing detained former army chief Lt Gen Tlali Kamoli and others under the bus, the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, has said.

Motinyane accused the two opposition leaders recently named for prosecution of abandoning fellow accomplices while pursuing an amnesty to protect them from trial.

The DPP reproached Lesotho Congress for Democracy (LCD) leader, Metsing, and Movement for Economic Change (MEC) leader Mochoboroane for deserting retired army boss, Lt Gen Kamoli to stand trial while they enjoy amnesty under the national reforms guise.

Motinyane said while Metsing and Mochoboroane want treason charges preferred against them be held in abeyance, the pair want Kamoli and soldiers accused with him to stand trial for the same facts and charges that they (Metsing and Mochoboroane) too have to answer.

“…The Applicants would prefer for the former Commander of the Lesotho Defence Force (LDF) and other soldiers to stand trial on the same facts, with the same witnesses and on the same charges, whilst they enjoy a temporary reprieve for the duration of the reforms,” Motinyane said.

The remarks are contained in her answering affidavit to an application by Metsing and Mochoboroane to have the Constitutional Court nullify their indictment two weeks ago. The duo was indicted to appear before court in relation to August 2014 events that resulted soldiers attacking different police posts. They are accused of involvement and are therefore facing treason charges.

They appeared before Acting High Court Judge, Justice Onkemetse Tshosa a fortnight ago but were not immediately charged after the court was informed that they have challenged their indictment. The two politicians have asked the Constitutional Court to not only nullify their indictment but also that the court should declare that their being called to appear before court constitutes abuse of court processes.

Metsing and Mochoboroane argue they are not subject to prosecution during the ongoing National Reforms Process by virtue of their being leaders of political parties who have to represent their parties in the reforms.

They cite a 2018 Memorandum of Understanding (MOU) between government and opposition to the effect that Metsing (who was then in exile) and other similarly placed persons with him would not be subject to prosecution.

“The government of the kingdom of Lesotho shall ensure the safety of all citizens in exile and must provide adequate security for Mr Metsing and other similarly placed exiled. Mr Metsing and similarly placed persons in exile will not be subjected to any pending criminal proceedings during the dialogue and reform process,” read the MOU in part.

Metsing and Mochoboroane referred to the clause despite the Constitutional Court in November, 2018, declaring it unconstitutional after it was challenged by families of slain army commander Lieutenant General Maaparankoe Mahao and Police Constable Mokalekale Khetheng’s as well as Mafeteng businessmen, Tebello Senatla, who argued the clause was discriminatory for making Metsing and others immune to prosecution while other citizens were still facing similar charges before the courts.

The court agreed with them and declared the clause unconstitutional for being discriminatory; the court also said the clause was unconstitutional for being inconsistent with Section 99 (3) of the constitution. The court said: “In principle, the court cannot compromise the exercise of powers by the Director of Public Prosecutions (DPP). The same applies to the arresting powers assigned to the police by law and those entrusted upon the Directorate on Corruption and Economic Offences (DCEO).”

The two leaders allege they were not aware of the court’s ruling on the matter and asked for leave to intervene in the case and be allowed to file their answers to the case. They also asked to cancel (rescind) a judgment it made on the matter.

However, the DPP says it would not be in the public’s interest to have Kamoli and company stand trial on the same facts and charge that Metsing and Mochoboroane also face yet the two remain not charged just because of an agreement between government and opposition. She maintains the clause was unconstitutional.

“The constitution unequivocally makes it peremptory for Government of the Kingdom of Lesotho to adopt policies aimed at promoting a society based on equality and justice for all citizens, regardless of their political, national or social status.

“As such, this Honourable court correctly declared Clause 10 of the MOU between government of the kingdom of Lesotho and the coalition of opposition parties to be unconstitutional and invalid.” Motinyane outlined that she was never part of Clause 10 and that it is not binding to her as the DPP.

She contends that she would not be part of a clause that takes away her constitutional powers adding that despite being the only office seized with powers to institute and undertake criminal proceedings, she was not consulted by government when the clause was negotiated.

“Although I am exclusively seized with the powers envisaged in Section 99 (2) and (3) of the Constitution, I was not consulted at any stage by anyone in the government of the Kingdom of Lesotho, or anyone else for that matter, in relation to the impugned Clause 10 of the MOU between government and the coalition of opposition parties,” it further reads.

She adds: “I further did not, at any stage, commit to any undertaking with anyone in the government of Lesotho, or anyone else for that matter, that criminal proceedings would be suspended against the applicants or anyone else who were or are similarly placed as the applicants. The Chief Prosecutor also dismissed Metsing’s allegation that he was not aware of the constitutional challenge to Clause 10 of the MOU.

Motinyane referred the court to Metsing’s interview with South African Broadcasting Services (SABC) where he (Metsing) said “unfortunately, high ranking officials from government, some of them were saying they are not going to respect the agreement and other people now are challenging that agreement in the courts of law.” She said their filing of the late rescission application was unreasonable and that the complainants have failed to demonstrate good cause and acceptable explanation for the court to rescind its application.

According to Motinyane, Metsing and Mochoboroane are engaged in a deliberate attempt to frustrate the commencement of their trial and are therefore abusing the court process. She said there are politicians facing serious criminal charges and Metsing and Mochoboroane should stand trial.

“If there is any abuse of court process, it lies squarely at the door of the applicants, whose sole purpose for filing this application 15 months after the final judgment declaring the impugned clause unconstitutional, is to frustrate the commencement of their trial.

“Instead of facing the charges head on, the applicants seek to advance unnecessary litigation with not an iota of any reasonable prospects of success,” Motinyane argues. While Metsing and Mochoboroane claim that their indictment undermines the reforms process, Motinyane says that cannot be true citing progress already made on the reforms.

“Proceeding with the criminal charges against the applicants does not in any way undermine the reform process. This is demonstrated by the advances in roads already made, along with the promulgation of the National Reforms Dialogue Act No.6 of 2018 and the National Reforms Authority Act No. 4 of 2019.” Motinyane said Metsing and Mochoboroane’s parties are well represented at the reforms urging them to demonstrate to their supporters that everyone is equal before the law.

“As political party’s leaders, the applicants should lead by example in demonstrating to their respective supporters that everyone is equal before the law by challenging the merits of the charges head-on in a criminal trial,” it continues. In their application, Mochoboroane and Metsing argued that their indictment was in breach of Clause 10 read with 9 of the MOU between government and opposition.

Clause 9 states that parties agree to fully participate in the reforms process and in the utmost good faith until the completion. “The issuance of the indictment and notice of trial that we should appear in the High Court in respect of this matter is in direct breach of Clause 10 of, read with Clause 9 on the requirement of good faith.

“The undertaking of the government was that prosecution would not proceed until the dialogue and reforms process are complete. This political undertaking by the government was within its power as the executive branch of government responsible for political decisions,” Metsing said.

For his part, Mochoboroane said Clause 10 was negotiated due to the political concern that there was a danger that prosecution of criminal cases could be abused and used as a weapon to harass political opponents.

He added those in government appeared to use the police and prosecution authorities, to pursue their political opponents and to run a smear campaign against them so that they could lose the support of the citizens. The case will be argued on March 31.


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