Blow for Metsing and Mochoboroane

. . . pair to appear in High Court on December 6

RELEBOHILE TSOAMOTSE

MAFETENG – Lesotho Congress for Democracy (LCD) Mothetjoa Metsing and Movement for Economic Change (MEC) Selibe Mochoboroane have been ordered to appear before the High Court on December 6 to be formally charged. This follows the same court’s dismissal of their application to have Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane’s decision to join them in the pending criminal trial nullified.

Chief Justice Sakoane Sakoane on Thursday this week ruled that Metsing and Mochoboroane’s joinder in the pending trial has not been done in bad faith as alleged by them. “I do not find anything mala fide in the Director’s conduct to await prosecution of the murder count and to seek an amendment of the indictment in the manner in which she did,” said Chief Justice Sakoane.

Together the two politicians had approached the High Court on November 25, 2020 alleging that their joinder is driven by ulterior motives and that it would prejudice them because they would be seen to be frustrating the trial when alleging their pre-trial rights when it eventually gets off.

They also argued that it is improper for the DPP to summarily indict them with a preparatory examination before the Magistrate Court. In his judgment, Judge Sakoane says the delay in indicting Metsing and Mochoboroane has not caused them any discernible trial prejudice for reasons that the merits have not yet been ventilated. He, instead, ordered that they appear before the criminal court in December when their co-accused appear.

“The applicants must appear in court on the next scheduled day for the trial on December 6, 2021.” It is expected that on the day, the two politicians will enter the dock with charges being read to them and possibly seek bail to avoid being remanded in jail. DDP Motinyane has joined them in a case where retired army commander, Lieutenant General Tlali Kamoli, along with three other soldiers, have been charged in relation to Sub-Inspector Mokheseng Ramahloko’s murder.

The three other soldiers are: Litekanyo Nyakane, Motloheloa Ntsane and Leutsoa Motsieloa. An amended indictment containing Metsing and Mochoboroane’s names as well as the additional charge (treason) was filed with the High Court registry on February 19, 2019 but the pair had argued it was erroneously filed.

It resulted in them not being immediately joined but asked the court to defer their joinder citing the High Court (sitting as the Constitutional Court) application. The application was challenging the validity of the 2018 controversial Memorandum of Understanding (MOU) between the then government and opposition after it was nullified by the same court.

The MOU was to the effect that politicians and similarly placed persons with them would not be subjected to prosecution pending the ongoing Reforms process. The MOU was, however, nullified by the ConCourt as well as the Court of Appeal.

When numerous attempts to avoid their indictment failed, Metsing and Mochoboroane launched the present application now challenging the manner of their indictment. They argued that DPP’s decision to summarily indict them was contrary to certain provisions of the Criminal Procedure and Evidence Act (CP&E).

They also contended that being joined with the four soldiers in detention would be a grave injustice because they would be committed to prison and forced to seek bail yet they first intend to challenge the filing of the indictment.

The two politicians also said they want to apply for permanent stay of their prosecution for the delay to charge them since 2014 claiming their indictment is only done when it is politically convenient to the politicians.

The crux of their case was that Motinyane’s decision to join them to the pending case is driven by ulterior motives and that she has acted mala fide. They also argued that it cannot be correct to hold that the interests of their safety are at stake six years later in 2020, yet the offences were allegedly committed 2014.

Metsing and Mochoboroane also contended they are only being joined in the pending case because of the DPP’s convenience: a foreign judge prosecuting the cases already appointed, prosecution relying on the same witnesses, need to bring the matter to finality, the cost implications of having the same witnesses testifying twice in separate trials, as well as the fact that those she seeks to join with the politicians have already been in detention for a long time.

Justice Sakoane finds no ulterior motives in the manner DPP has conducted herself in the trial. He states in the judgment that section 144 of the CP&E entrusts the DPP with the function to determine whether, in her subjective view, relevant factors or state of affairs existed at the time of her original decision to indict those now awaiting trial (soldiers) with the complainants in the case.

“The Director’s opinion that one or more of the statutory factors existed then suffices,” he said. Also Justice Sakoane states that it is wrong for the complainants to attribute mala fide to the DPP’s delay in commencing Kamoli and three others’ trial in order to join them. The judge agrees with Adv. Motinyane’s version that it became necessary to amend the indictment after more statements were obtained and resolved that there needs to be additional charges and accused persons.

“It is because of that discovery that the Director decided to seek an amendment of the murder indictment by adding other offences, a witness list and joining the applicants,” he said. On their claim that the delay to indict the four soldiers so as to join them was also a mala fide on the part of the DPP, Justice Sakoane says the complaint has no merit. He says the Director’s right to prosecute murder does not prescribe at all while for treason and other offences, DPP’s right lapses after twenty years from their comission.

The judge also dismissed the contention that Adv. Motinyane is guilty of abuse of court process by summarily indicting the complainaints, they had argued that she is part of the Executive which signed or endorsed the MOU alleging temporary immunity for some citizens but Justice Sakoane remarked, “The Constitution wants a Director of Public Prosecution who is independent and takes decisions to institute criminal prosecutions honestly, fairly and without fear or prejudice. Independence requires that there be no improper influence, hinderance or obstruction by organs of state, the media or public opinion.

“The Director must avoid being subservient to government and being influenced by powerful interest in the society. She should not be prepared to be pushed around by politicians and the police. Hence, asserting her independence from political influences is a critically important requirement in mainatining public confidence in the fair and impartial administration of criminal justice.”

According to the judge nothing in the papers supports that filing the amended charge sheet constitutes an abuse of the court process.