Justice Makara trashes Clause 10


. . . as Metsing and Mochoboroane fight treason charges


MASERU – Justice Molefi Makara has said the Constitution of Lesotho and the pronouncements of its courts supersede any external commentary, instruction or decision. Justice Makara declared this unequivocal position from the bench in the ongoing constitutional case in which political leaders Mothetjoa Metsing and Selibe Mochoboroane are seeking rescission of an earlier High Court decision.

That court decision annulled a clause of Southern African Development Community (SADC) sponsored October 2018 Memorandum of Understanding (MOU) between government and opposition political parties of the time. The subject clause, which came to be known as the infamous Clause 10, is to the effect that the Lesotho Congress for Democracy (LCD) leader, Metsing, and similarly placed persons with him will not be subject to prosecution during the ongoing National Reforms process.

Metsing was at the time holed up in self-imposed exile in neighbouring South Africa. The then Deputy Prime Minister (DPM), Monyane Moleleki signed the MOU on behalf of the government of Lesotho while the Democratic Congress (DC) leader Mathibeli Mokhothu signed the agreement as Leader of Opposition at the time.

However, the Constitutional Court comprising Justices ’Maseforo Mahase (ACJ), Molefi Makara and Semapo Peete in 2018 nullified the clause describing it as discriminatory. This was after a legal challenge by the families of slain Lesotho Defence Force chief, Maaparankoe Mahao and Police Constable Mokalekale Khetheng, and one Tebello Senatla. The families argued Clause 10 was discriminatory in so far as it ensured politicians’ immunity from prosecution, a view the court agreed with them and declared it unconstitutional.

In its judgment, the court said it cannot compromise the exercise of the powers of the Director of Public Prosecutions (DPP) as well as arresting powers to police and the Directorate on Corruption and Economic Offences (DCEO) by upholding the intended effect of the clause. In an unexpected move, the SADC Facilitation Team to Lesotho through envoy, former South African Deputy Chief Justice Dikgang Moseneke, on March 29, 2020, wrote to the Lesotho government urging compliance with the MoU. The letter was authored upon realisation that Metsing and Mochoboroane, leader of the Movement for Economic Change, faced treason charges in the courts of Lesotho.

But Justice Makara states: “Justice Moseneke can speak, the SADC can speak, but at the end of the day as judges in this country, we will be applying the law and make our decision.” In their court papers, Metsing and Mochoboroane have attached Justice Moseneke’s letter to former Prime Minister Motsoahae Thabane as part of their evidence in a bid to persuade the court to overturn its decision. The letter on Tuesday sparked debate over its weight and influence on the court’s decision.

Through its lawyer, Advocate Christopher Lephuthing, the state said Justice Moseneke’s letter carried no weight as the Constitutional Court has previously ruled against Clause 10. Lephuthing said the retired judge might have not been aware of the court’s nullification of the clause when he wrote the letter. He asked the court not to consider the letter saying Justice Moseneke has not deposed to an affidavit in the present application and therefore discussing the contents thereof would be speculation.

It is also the state’s case that Mochoboroane have no locus standi (legal right to sue) based on Clause 10 as he was not party to it. Lephuthing said Mochoboroane was never in exile and that the clause was never meant to cover him.Advocate Lephuthing reminded the court that a pronouncement was made that Clause 10 is unconstitutional, and therefore judge Moseneke’s word cannot stand against that of Lesotho’s courts of law. Lephuthing said it is not even clear whether Justice Moseneke is aware of the Court’s ruling in relation to Clause 10 and reiterated that since he (Moseneke) has not deposed to an affidavit in the proceedings, speaking about the letter would be merely speculating.

“It may not be wise for this court to interrogate Moseneke’s letter, he has not deposed to an affidavit in this case, speaking about his letter would be making assumptions,” Lephuthing said. He added: “We have subscribed to our oath of office in terms of the Constitution of Lesotho.” Advocate Motiea Teele KC, who represents Mochoboroane and Metsing, said the duo were both covered by the clause but that the latter was only singled out or mentioned as an assurance that he would be protected as he was in exile.

Teele said the agreement was made for all opposition parties and that Mokhothu signed as their representative. Moseneke’s letter had argued 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.” He added: “I am, therefore, appealing to you and the Government of the Kingdom of Lesotho to adhere to the letter and spirit of the MoU brokered by the SADC Facilitation Team to the Kingdom of Lesotho.

“It should be stated clearly that any action or process in contravention of the letter and the spirit of the MoU, signed on 16 October, 2018, will not be welcomed by the Southern African Development Community (SADC).” Metsing and Mochoboroane are facing treason charges for their alleged involvement in the August 30, 2014, attempted coup that saw Thabane flee the country; they are yet to be formally charged having challenged their indictment. The duo has asked the court to consider Justice Moseneke’s letter, arguing the government (the state) is bound not only by the letter but the commitment it made under the MoU.

They maintain that the government should remain devoted to the commitment that no political leader will be prosecuted at least until reforms have been completed. According to Metsing and Mochoboroane, the SADC identified the reforms as a pressing issue that Lesotho should urgently engage in and that it is necessary for all leaders to take part in the process and for that, it endorsed the MoU to ensure that the reforms become a success. The DPP’s decision to prosecute was in contravention of the MoU which is binding on the government.


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