Concourt faults spy boss

. . . as Mofomobe wants M5 million for defamation

’MATHATISI SEBUSI

MASERU – The Constitutional Court has torn into provisions of the National Security Service Act of 1988, declaring Section 26(2) unconstitutional while also nullifying the pursued seizure and search of mobile phones of two opposition politicians.

The court found that seizure of the mobile phones by the agency essentially violates their right to privacy and freedom from arbitrary seizure of property.  The confiscation of phones has also been declared unconstitutional.

A panel of Chief Justice Sakoane Sakoane and Justices Fumane ’Malebona Khabo and Moneuoa Kopo heard the consolidated cases of duo Basotho National Party (BNP) leader, Machesetsa Mofomobe, and Democratic Congress (DC)deputy publicist, Moeketsi Shale, as necessitated by their identical nature. Mofomobe and Shale sought for the court to strike down Section 26 of National Security Service Act (NSS Act) as unconstitutional, to declare the issuance and execution of the warrants for the seizure of mobile phones as a contravention of their constitutional rights to privacy and freedom from arbitrary seizure of property protected by Sections 11 and l7 of the Constitution of Lesotho.

The duo further wanted a review and setting aside of the warrants on the ground that their authorisation is legally invalid.

The two politicians were served with executive warrants signed by the Minister in the Prime Minister’s Office, Limpho Tau, authorising the seizure and search of their cellphones by the National Security Service (NSS), in terms of Section 26 of the NSS Act. On May 17 NSS officers served Mofomobe with a warrant which he refused to accept while contesting its execution and the officers left his residence. The following day he filed his constitutional application on grounds of urgency and a consensual interim order was made suspending the execution of the warrant. The NSS further served Shale with a similar warrant on May 18. It was executed after he was advised by his lawyer, Advocate Tembo Lesupi, to surrender his mobile phones.

His application was filed on May 22 also on grounds of urgency seeking interim orders for the return of the phones and stay of their search.  The court ordered for the two applications to be consolidated and heard on June 5. Mofomobe is suspected by the NSS to be in possession of classified material supplied to them by officers of the agency.

Heis also suspected to be involved in the murder of popular Tšenolo FM presenter, Ralikonelo Joki, and of money laundering. Shale is also suspected to be involved in Joki’s murder.

Section 26 of the NSS Act empowers the defence minister to issue the warrants but requires him to evaluate the likelihood of the information sought in the suspects’ phones being of substantial value in assisting the agency to find the allegedly leaked classified material and their involvement in crimes of murder and money- laundering, according to the Constitutional Court.

In the Constitutional Court judgment handed down on Tuesday this week the three judges concur that Section 26 of the NSS Act authorises issuance of executive warrants to interfere with the politicians’ rights to informational privacy and freedom from arbitrary seizure of their mobile phones.

However, the judges say the procedure outlined therein requires that the applications for warrants and their issuance should meet the thresholds of information sought being of substantial value in the investigation of the alleged crimes and there being no other means of obtaining the information.

The court notes, in the same vein, that there are no safeguards in the legislation to guard against abuse of the power to issue warrants. This being the process presided over by a minister without external independent supervision.

“The procedure of issuance of warrants under Section 26(2) lacks the necessary safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse. For this reason, the Section 26(2) procedure is declared unconstitutional,” reads the judgement.

The judges also highlight that Minister Tau was not designated to perform the Section 26 statutory functions bestowed on Prime Minister Ntsokoane Matekane as defence minister, “he, therefore, lacked authority to issue the warrants.”

The minister, they add, issued the warrants to seize and search Mofomobe and Shale’s mobile phones and/or those found in their possession and make copies of any information contained therein “which has a bearing on the functions of the Service.” But the referenced functions of the NSS are not specified in the warrants.

Tau’s authority toissue the warrants was challenged on the basis that he is neither the prime minister nor was he designated by him to perform the statutory function laid down in Section 26. Neither he nor the prime minister filed any affidavits in these proceedings.   It was left to the Director General of the NSS, Pheello Ralenkoane, to pick up the cudgels on their behalf, the judges further say. “In its applications for the warrants, the NSS made bald statements that there were no other means available to obtain the information and find the officers responsible for leaking classified material.

“The question that sticks out like a sore thumb and ought to have been answered is why the NSS could not resort to the same means it used in revealing the identity of Pitso and could not be used to search for the identities of the other suspected members,” the judges said.

Pitso is a female Intelligence Officer in the NSS also alleged to have a passionate relationship with Mofomobe, and the spy agency claims she shared confidential material with the suspects.

The warrants, according to the judges, also did not tell the applicants what offences they are suspected to have committed as to authorise seizure and search of their phones, and that they only got to know them when the Crown filed its opposition to their applications for relief in court.

It emerged from the Crown’s papers that they are suspects in crimes of possession of classified information, murder and money- laundering.

“The crimes of murder and money-laundering are not national security offences. Their investigation is outside the constitutional mandate of the NSS. Furthermore, seizure and search of property of persons suspected of committing these offences is by judicially authorized warrants.

“The crime of possession of classified material/information by persons who are not members of NSS is found nowhere in the NSS Act. What is found under Section 39(b) is persuading a member to omit to carry out his duty or to do any act in conflict with his duty. This is understandably so because unlike members, non-members have no lifelong secrecy obligations,” the judgment further reads.

Immediately following delivery of this judgment, Mofomobe filed a defamation suit against Minister Tau and the NSS boss, demanding M5 million in damages.

The BNP leader wants the money to paid within 30 days of this claim.

Represented by Hudssons Chambers, Mofomobe argues that a Memo authorized by Director General Ralenkoane directing the seizure of his mobile phones as an alleged suspect has painted him as a murderer and a money launderer, as a result tainting his image.

The letter of demand states that the Memo that defamed Mofomobe’s character and triggering the executive warrant which was signed by Minister Tau claims in essence his involvement in money laundering and the murder of Joki.

The letter reads that “The Memo contains defamatory statements of the Director General – National Security Services who purported to investigate the cases of murder and money laundering.

“The Memo is replete with irresponsible illusions of the Director General which he conveyed to the Prime Minister as credible information that our client is a murderer and is involved in money laundering.”

The letter further reacted to the illegality of Minister Tau’s conduct in legitimising the murder and money laundering claims made against Mofomobe by signing the executive warrant. It states that the High Court of Lesotho found Tau’s conduct of signing the warrant illegal in the matter between Mofomobe versus the Prime Ministers and others.

“The reading of the judgment suggests that Honourable Tau had no jurisdiction facts to usurp the functions of the Prime Minister and signed for defamatory statements which could not have been justified. This would be a particularly difficult decision to make where the situation arose shortly following the gruesome murder of Ralikonelo Joki, but Honourable Limpho Tau believed that our client killed Joki.

“He deliberately and recklessly sheltered behind horse trading, stratagem, cloak and dagger approach of Director General NSS to scandalize our client,” the demand letter further reads.

The letter also states that with these noted, the Commissioner of Police made public announcement at a police pass-out ceremony at the Police Training College that suspects in Joki’s murder had been identified and Mofomobe was not among them.

It further articulates that the claims of Mofomobe being a murder suspect were escalated by radio stations and print media, thus causing more harm to his image, while also challenging the position held by Ralenkoane suggesting that government has to recruit a competent director general.

The correspondence claims the incumbent, Ralenkoane, has played a huge role in influencing the minister of defence to breach the law.

“The offensive statement of the DG-NSS interfered with the peace of the Kingdom and compromised the integrity of our client in relation to the controversy surrounding the murder of Joki. We accordingly demand M5 000 000 as damages for defamation of character. The amount must be paid within 30 days of the service of this letter of demand,” the letter noted.

This follows the announcement by the police on Monday announcing the names of Joki’s suspected killers.

The three men Sootho Liphoto, 35, Kamo Phakoe, 35 and Mothusi Klass, 31, are suspected to be part of a group of five who waylaid and shot the Tšenolo FM presenter dead as he left the radio station.

The trio has since identification been reported to have been arrested and remain in police custody.

According to the police, two other suspects will be named at a later stage. The police further revealed that preliminary findings indicate that the motive behind the murder appears to be a feud from a traditional initiation school between Joki and one of the suspects.

On the night of the murder the suspects were travelling in a blue Honda Fit – registration number A 006 BBC – which has since been impounded by the police. The driver of the vehicle has also been detained.

The suspects, the police further say, are linked to the famo gangs that have been fingered in various killings around the country and in neighbouring South Africa.