Matekane touches hornet’s nest
’MATHATO SEBOKA and ‘MANT’SANG KHUTLISI
MASERU – Prime Minister Ntsokoane Matekane touched the hornet’s nest this week by suspending the Director of Public Prosecutions – DPP Hlalefang Motinyane according to analysts.
In the wake of the suspension, which the government labelled precautious and not a dismissal, the legal fraternity and opposition parties among, them the Democratic Congress – DC have been quick to voice their disdain with the premier’s ‘careless move’.
The Law Society of Lesotho immediately called for the “withdrawal of executive action in the suspension of the Director of Public Prosecutions Hlalefang Motinyane”.
Their statement released on Tuesday this week laid bare the legal body’s dissatisfaction with the prime minister’s action which they said “however well-intentioned the suspension maybe, contravenes express constitutional provisions and imperils the very foundation of our democratic order”.
“In terms of Section 141(7), the power to suspend the DPP, vests in the King on the advice of the Public Service Commission. It is clear from this that it does not grant the Prime Minister powers to suspend the DPP,” Law Society said.
The statement also stated that under the same constitutional scheme, the removal of the DPP must similarly follow the same constitutional architecture.
“So, neither the Prime Minister nor any member of the Executive has unilateral power to dismiss the DPP, any such action, if not carried out in compliance with constitutional process is ultra vires, void ab initio and of no legal effect”.
“Should this dismissal be allowed, it would set a precedent the Executive may bypass constitutional mechanism and displace office-bearers at will. This will not only undermine the legitimacy of independent offices but erodes the carefully constructed checks and balance that define our constitutional order,” it further stated.
“We must remind your office that constitutional protections are not ornamental, they are substantive, enforceable and inviolable”.
Among other things, they urged the Prime Minister to withdraw immediately any communication or action purporting to remove the DPP from office, refrain from taking any further action in relation to this office outside of the constitutionally prescribed framework and refer the matter, if necessary to the Public Services Commission and await the requisite advice to the King in accordance with the constitution.
“We advise that should an amicable resolution of the matter fail, we will have no option but to seek intervention from the courts of law,” the statement threatened.
Along with the Law Society, a host of political players in the kingdom joined the fracas.
Yearn for Economic Sustainability (YES), issued a statement reacting to the same action of Prime Minister Matekane saying, “This action, while appearing to be administrative, is deeply unconstitutional and threatens the foundational principles of the rule of law, judicial independence, and prosecutorial autonomy in the Kingdom of Lesotho”.
As YES, they reminded the Prime Minister and the public at large of Section 141(7) of the Constitution of Lesotho saying the provision, in its clarity and intent, affirms the independence of the DPP from any political interference, including from the Executive.
“The Constitution further provides no authority or legal mechanism through which the Prime Minister or Cabinet may unilaterally suspend or remove the DPP. Any such action is not only ultra vires but also a direct violation of the separation of powers doctrine enshrined in our democratic order,” it stated.
Likewise YES called upon the Prime Minister to immediately and unconditionally withdraw the executive order suspending the DPP and to respect the constitutional limits of executive power, especially in matters concerning prosecutorial and judicial independence.
In a bizarre twist, they appealed to the heads of national security and defence institutions – the Lesotho Mounted Police Service (LMPS), the Lesotho Defence Force (LDF), and the National Security Service (NSS) to issue a public statement in defence of constitutionalism and national stability.
“These institutions have previously shown commendable courage when Parliamentarians sought to exercise their constitutional power to pass a vote of no confidence against the Prime Minister in 2023. At that time, the LMPS, LDF, and NSS took a principled position, reminding all stakeholders of the sanctity of democratic processes and national peace,” YES stated.
“We expect the same neutrality, consistency, and moral authority from these institutions now. Their silence will only deepen public anxiety and feed perceptions of selective loyalty and political capture”.
At the time, political leaders across the political divide profusely condemned the security chiefs’ statement and involvement in matters relating to politics saying, they were “out of line”.
The security chiefs had issued a veiled threat to members of the National Assembly to desist from pushing through a motion of no confidence in the government, which would have seen Matekane ousted in 2023 hardly two years in power.
Looking at the future impact of the matter YES stated that “this illegal suspension can cause grave harm to the independence of Lesotho’s criminal justice system, and set a dangerous precedent for executive overreach and political manipulation of legal Institutions.
“It risks eroding public trust in the impartial administration of justice and may ignite a constitutional crisis”.
They also called upon civil society associations the like of Development for Peace Education (DPE), Lesotho Council of NGOs (LCN), and Christian Council of Lesotho (CCL) to rise to the occasion and take a stand in the name of democracy, justice, and institutional independence.
“These organizations have long been champions of reform and peacebuilding, but their conspicuous silence at this critical hour is deeply concerning and risks being interpreted as complicity or capture. We urge you to act in accordance with your mandates and historic missions,” the statement further said.
For its part, the DC has condemned Matekane’s action as “a flagrant violation of the Constitution”.
The party labelled the move to suspend the DPP as not only “unlawful but also deeply damaging to Lesotho’s justice system and international reputation”.
With allegations that her office has been locked and security withdrawn, the DPP is in a fix.
It is not clear if and when the government would appoint the acting DPP.
The DPP holds a pivotal role in the administration of justice in Lesotho, entrusted with the initiation of legal proceedings in the courts and if his/her absence the justice wheel will grind to a halt.
DC argues that the Prime Minister’s action constitutes an overreach of executive power and undermines the rule of law in the country adding the action is highly irregular for the Prime Minister to assume powers he does not have, stressing that the action is not only a violation of the nation’s legal framework but sets a dangerous precedent that must be resisted and reversed immediately.
DC emphasized that it is not opposed to the suspension or removal of the DPP should there be valid and lawful grounds to do so.
However, the party insists that such steps must be taken within the bounds of the Constitution and through proper channels stressing that any deviation from the process would amount to political interference and an attack on the independence of the judiciary.
DC further accused the Prime Minister and those supporting the suspension of arrogantly inserting themselves into processes where they have no authority, thereby misusing their governmental powers for personal or political ends.
It says the behaviour reveals a shocking disregard for the law and the sanctity of the democratic institutions and suggests an attempt to politicize the judiciary by tainting key offices with “unclean hands”.
The party has demanded that Matekane immediately rescind the letter of suspension and refrain from further unconstitutional conduct.
They warn that failure to do so will deepen public mistrust in the government, erode the integrity of governance, and draw negative attention from the international community.
The suspension of the DPP has ignited political tension across the country.
As the controversy unfolds, Democratic Congress is positioning itself as a defender of constitutional order, demanding accountability from those in power and reminding the public of the dangers of unchecked executive authority.
“We call upon the Prime Minister to reflect on the oath he took to uphold the Constitution and to act accordingly by reversing this damaging decision. Our nation cannot afford to normalize lawlessness at the highest levels of government,” DC urged.
Whether the Prime Minister will heed this call remains to be seen, but the battle over DPP’s suspension is far from over.
This is not the first time however that the executive fidgets with the office of the DPP.
In 2014 during the premiership of Motsoahae Thomas Thabane’s under the banner of the All Basotho Convention – ABC – a similar incident happened.
Then DPP Leaba Thetsane received a letter by then Acting Government Secretary, the late Moahloli Mphaka in May 2014, stating that Thetsane was occupying the office contrary to the country’s regulations, which stipulated that he should retire at the age of 55 years.
He was 56 years at the time.
And in June 2014, Thetsane was ordered to vacate the office with immediate effect citing that he had passed his retirement.
Thetsane approached the Constitutional Court and his affidavit he stated that he held the office of DPP since January 1, 2002 and that at the date of his appointment by the Public Service Commission the retirement age of the Director of Public Prosecutions was
the age of 55 as set out in section 141 (8) of the Constitution of Lesotho.
“That position was then changed by the two events. The first was the enactment of the Public Service Act NO. 1 OF 2005 which in Section 26 (1) fixed a new retirement age for Public Officers as the age of 60 years. The second was the voluntary act on my part to agree or consent to be bound
by the provisions of Section 26 (1) aforesaid, requiring Public Officers to retire upon attaining the age of 60 years,” he argued in his affidavit pleading that his age permitted him to remain in office till 60.
After a bruising court battle, Thetsane was successfully ousted paving the way for a new appointee of the regime’s choosing at the time.
Motinyane’s battle with the Executive is not new. It started in the middle of 2024 when Prime Minister Matekane notified her of his intent to have her ‘impeached for incompetence’ in a show cause letter.
While the arguments for the removal of Thetsane and that for the suspension of Motinyane maybe different, the apparent inability of the prime ministers in both cases to respect separation of powers is glaring.
