‘If clause is illegal, does it matter what your clients submit?”
MASERU – Renewed efforts by the duet of political leaders indicted for treason who are attempting to evade justice through invocation of the controversial Clause 10 were incised by the Appeal Court of Lesotho’s panel of five judges this week.
Lesotho Congress for Democracy (LCD) leader, Mothetjoa Metsing, fellow accused and leader of the Movement for Economic Change (MEC) Selibe Mochoboroane’s legal team resurrected the SADC sponsored clause to argue against the indictment of their clients a fortnight ago – conjoining 10 incarcerated soldiers facing the same charge.
Their lawyer, Advocate Motiea Teele KC, was on Monday grilled on the validity and legal standing of the clause.
Metsing and Mochoboroane are asking the Apex Court to rescind a High Court (sitting as the Constitutional Court) judgement that Clause 10 is unconstitutional. The Constitutional Court has on two occasions declared the clause unconstitutional and inconsistent with the constitution, but the two politicians insist the court erred in arriving at that conclusion.
The duo argues that they were not cited when the application challenging the clause was first brought to the court. This they say is despite them having direct and substantial interest in the matter.
The politicians launched an application sometime in February 2020 seeking a cancellation of the judgment but the court refused the request. However, the court ruled that they had interest in the matter and allowed them to intervene as parties.
Dissatisfied with the outcome, the pair approached the Appeal Court and argued that the court misdirected itself when it only allowed them to intervene but declined to reopen the matter. They are asking the court to order rescission.
Clause 10 is an agreement between the then government and opposition parties, and to the effect that Metsing and similarly placed persons with him shall not be subject to prosecution during the ongoing National Reforms Process.
During the appeal hearing on Monday, Advocate Teele was asked “Who in our constitution determines when matters come to court? And also whether the Director of Public of Public Prosecutions (DPP) is bound to accede to pressure exerted by any other external authorities?”
Teele said the DPP does not act in vacuum but acts on instructions, arguing that in the present case government is a client – as treason as a charge is pursued by government.
He argued that government is bound by promises it makes and maintained that it is bound by the MOU. He said the clause is not against the law as it only defers prosecution of the two leaders in a bid to find peace for the country.
This prompted more questions from the bench, Justice Moses Chinhengo asked if the clause applies across the board or works only in favour of the two politicians before court; to which Teele replied that he represents the pair and that they are the only ones claiming the benefits of the clause before court.
“It becomes difficult to consider this clause for the present appellants when other people are being prosecuted for the same offence,” Judge Chinhengo remarked.
He also asked Advocate Teele if it was wise to prosecute 10 people and leave just two because of a substantial interest they claim.
President of the Court, Judge Kananelo Mosito, also questioned Teele saying “if the clause is unconstitutional, why does it matter what would your clients submit?”
Teele replied that it’s a right to be present before court and make submission on matters one has direct and substantial interest.
He was opposed by Advocate Christopher Lephuthing on behalf of prosecution who said there is never a day Clause 10 will be constitutional. Lephuthing submitted to court that the appeal by Metsing and Mochoboroane is not only ill conceived but an abuse by court process.
He scoffed at the politician’s argument that they should not be charged for them to participate in the National Reforms yet they have selected other people from their parties to represent them in the National Reforms Authority (NRA). He referred the court to the gazette listing members of the NRA and said Metsing and Mochoboroane are not members.
Also, Lephuthing argued that it cannot be correct to say Metsing was not aware of the constitutional application challenging validity of clause yet he made several interviews with the media talking about the reference. In one of the interviews, Metsing is said to have argued that courts have no jurisdiction to overrule Southern African Development Community (SADC) decisions.
The Crown’s lawyer argued that it was misleading for the court to be told that the two leaders need to participate in the reforms.
“It is misleading to say they want to participate in the reforms, they have appointed other members of their party in the NRA,” Lephuthing said.
He added “The time is up for the two politicians, there will be no wisdom in separating their trial from that of soldiers yet they are accused for the same offence. Their application before this court is abuse of court process; it has been brought in bad faith and is misleading.”
He asked the court to dismiss their appeal saying interests of those affected by the crimes alleged to have been committed by the pair cannot be compromised because of the awkward arrangement in the name of the MOU signed by politicians.
Acting High Court judge, Justice Onkemetse Tshosa, endorsed an indictment containing the names of the two politicians a fortnight ago, this meant they could formally be charged but their lawyer applied that the trial be stayed pending the appeal court hearing of their appeals.
The case is before the High Court and will be argued next Wednesday.