Justice Peete calls politicians to order

‘Don’t use the courts to settle score’

RELEBOHILE TSOAMOTSE

MASERU – Justice Semapo Peete has cautioned politicians against abusing the courts of law and initiating tenuous litigations to settle political scores and solve political party disputes. The judge referred to numerous “political cases” that he said have been brought before the courts with complainants’ sole intent of using such to veil their political schemes. Justice Peete said these cases are brought to court by politicians in sitting governments and in opposition, turning the courts into a political platform as a result.

He urged government to distinguish “political” from “legal” problems, while also calling on the executive to “take the courts seriously.” The judge made the remarks on Monday this week during a hearing in which Movement for Economic Change (MEC) leader, Selibe Mochoboroane together with the Lesotho Congress for Democracy (LCD) leader, Mothetjoa Metsing are challenging their indictment in the High Court of Lesotho.

Justice Peete’s comments were triggered by the complainants’ request that the hearing be postponed in order to give government a chance to form their position on the matter. Advocate Motiea Teele KC, who represents Mochoboroane and Metsing, asked for the postponement saying the new government is yet to form a position on the charges faced by his clients. Mochoboaroane and Metsing are accused of involvement in a 2014 alleged coup that led to the collapse of the first coalition government led by former Prime Minister Motsoahae Thabane.

They face treason charges after Director of Public Prosecution (DPP), Advocate Hlalefang Motinyane, asked the court to join them in a case where retired army commander, Lieutenant General Tlali Kamoli, along with three other soldiers, is charged with the murder of police Sub Inspector Mokheseng Ramahloko. The tragic incident took place during a military operation that saw the soldiers attack and seize control of several police posts in the capital Maseru. Kamoli and company will also face additional charges. Mochoboaroane and Metsing have not been formally charged after challenging their indictment in the Constitutional Court.

The duo appeared before High Court judge Justice Onkemetse Tshosa on March 2 but could not plead to their charges citing the pending constitutional challenge. In an attempt to escape the charges, Mochoboroane and Metsing have asked the Apex Court to rescind an earlier 2018 judgment nullifying a Memorandum of Understanding (MOU) between government and political parties. The MOU was to the effect that Metsing and similarly placed persons would not be subject to prosecution during the ongoing National Reforms programme.

The MOU was endorsed by South Africa’s Justice Dikgang Moseneke, special envoy to the Southern African Development Community (SADC) Facilitator to Lesotho and South African President, Cyril Ramaphosa. The court in 2018 declared the MOU unconstitutional for being discriminatory and inconsistent with Section 99 (3) of the Constitution of Lesotho. 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).”

Despite the Constitutional Court’s nullification of the MOU, Mochoboroane and Metsing contend the government was bound by the agreement and, therefore, charges cannot be preferred against them as leaders of political parties who enjoyed protection from prosecution as covered by the MOU. They argue their indictment would be in breach of the MOU. In their court papers, Mochoboroaone and Metsing said the SADC identified reforms as a pressing issue that the country should urgently attend to and which all political leaders should partake in.

They also said a political agreement was reached that during the reforms, no political leader should be charged for reforms to be successful. After learning of the treason charges, the SADC called on the Lesotho government to withdraw the charges until reforms have been completed. Justice Moseneke on March 29 wrote to former Prime Minister Motsoahae Thabane directing him to ensure that his government adhered to the 2018 MOU. Moseneke wrote in his letter that he had learned “with surprise and concern” about the treason charges against the two leaders and asked government not to go ahead with the charges in spirit of the MOU.

Moseneke maintained that “no political leaders should be charged or prosecuted until the dialogue and reforms process in the kingdom of Lesotho has been duly and fully completed.” His letter further stated: “I wish to remind you of the Memorandum of Understanding (MOU), signed between the government of the Kingdom of Lesotho and the coalition of opposition parties on 16 October 2018, which was facilitated by SADC facilitation team to the Kingdom of Lesotho. Article 10 of this MOU states, “the government of the Kingdom of Lesotho shall ensure the safety of all citizens in exile and must provide adequate security to Mr Metsing and similarly placed exile persons. Mr Metsing and similarly placed persons in exile will not be subjected to any criminal proceedings during the dialogue process.”

However, the DPP has vowed to go ahead and charge Metsing and Mochoboroane, arguing the MOU is not binding on her office and that the agreement was nullified by the court in 2018. In court papers, Motinyane said she would not be part of an agreement that clips her constitutional powers. “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,” she said.

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.” Mochoboroane and Metsing’s lawyer, Advocate Teele KC, told the Constitutional Court on Monday that the Prime Minister Moeketsi Majoro-led government is considering its position on the charges preferred against Mochoboroane and Metsing.

He told the court that he has been instructed to ask for a month’s postponement to allow the new government to consider its position. “My instruction is to seek a postponement for a month so as to enable the new government has time to consider its position on this issue,” Teele submitted. Teele said it was necessary for the new government to consider their position on the charges facing his clients because treason charges are political in nature and that they are pursued by the government of the day.

He informed the court that the delay in forming the position was due to the fact that the current government has just been in office and the Minister of Law, Justice, Human Rights and Constitutional Affairs, who forms part of the consultations, has only recently been appointed into cabinet. Further, Teele said government was consulting with the SADC Facilitation Team to Lesotho on the matter, adding their request for a postponement was meant to delay the matter.

When presiding judges expressed dissatisfaction with the repeated postponements, Teele said this particular postponement was not deliberate but perpetuated by the fact that the new government has recently come into office and needed time to consider its position. “Under no circumstances are we delaying the matter, this issue has come to a new government that has to form its position. There are consultations been made, consultations with ministries, the Attorney General, the DPP, as well as the foreign government facilitating this matter,” Teele said.

One of the presiding judges, Justice Molefi Makara, said he did not understand why it takes long for government to consider its position yet judgement in the matter was made as far as 2018 where the court indicated in clear terms that the parties involved should seek political solutions on the matter. Justice Makara raised concern that the case has been before the court for a long time, and “there is need to finalise it.” Acting Chief Justice ‘Maseforo Mahase, concurred, adding it was not wise to agree to a postponement while the very same complainants approached the court on an urgent basis.

Justice Mahase said a criminal trial has been put in abeyance during the determination of the Constitutional Court and, therefore, needed to be urgently determined. “I don’t understand why this should be postponed while the very same people who came to this court on an urgent basis are now delaying the matter; we should keep in mind that there is a criminal put in abeyance,” she said. Eventually, the court ruled that complainants should file their reason for a postponement. The court said the case was of a great national importance, urgent and that for being a court of record, reasons for postponements should also be recorded.

Justice Makara directed complainants to include other issues in their reasoning for postponement, being the fact that the Constitutional Court in the initial judgment embraced the political solution operating within the parameters of the law; the powers of the DPP against the powers of political authorities; the origins of Clause 10 in question, as well as the effect of the decision reached by different governments (previous government and government coming into power). The court will consider the postponement on Thursday next week.