. . . Metsing and Mochoboroane accuse duo of inciting DPP
MASERU – Movement for Economic Change (MEC) leader, Selibe Mochoboroane, has accused Basotho National Party (BNP) leader Chief Thesele ’Maseribane and his deputy Machesetsa Mofomobe of influencing the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, to prefer treason charges against him.
This after Mochoboroane was summoned along with the Lesotho Congress for Democracy (LCD) leader, Mothetjoa Metsing, to appear before the High Court to face treason charges for events that happened in August 2014.
Although they were not immediately charged, the prosecution led by Advocate Shawn Abrahams told Acting High Court Judge, Justice Onkemetse Tshosa, that the prosecution intended to charge the two politicians for their involvement but has had to put the charge on hold pending their petition to the Constitutional Court.
“My lord the prosecution indicated in the previous appearance before court that after going through evidence in this case, additional charges would be preferred and more people charged.
“We have those other people before court but although they are before court, the have approached the Constitutional Court on this very same matter and we cannot add them as accused persons as yet.” Abrahams said.
Abrahams also asked that the criminal trial be held in abeyance until Metsing and Mochoboroane have been charged. They will be charged for treason along with retired army commander, Lieutenant General Tlali Kamoli, Captain Litekanyo Nyakane and Lance Corporal Motsieloa Leutsoa.
Kamoli, Nyakane and Leutsoa have already been charged for murdering Sub Inspector Mokheseng Ramahloko also in August 2014 during an alleged coup attempt. They will be charged for treason as well.
Mochoboroane and Metsing have asked the court to cancel (rescind) the judgment it made on the constitutionality of Clause 10 of an earlier Memorandum of Understanding between government and opposition parties. The Constitutional Court, in 2018, not only declared the clause unconstitutional but said it would not encroach into the powers of the DPP, the Police, the Directorate of Economic Offences and Corruption (DCEO) or any other law enforcement agencies.
The clause was challenged by the family of murdered police constable Mokalekale Khetheng, the family of slain army commander Maaparankoe Mahao as well as Mafeteng businessmen, Tebello Senatla, who was sued by the DCEO.
They argued that Clause 10 amounted to discrimination for ensuring that Metsing and others would be immune to prosecution. The court agreed with them saying the clause was discriminatory and that it was unconstitutional for being inconsistent with Section 99 (3) of the Constitution.
The court in November 2018 said: “In principle, the court cannot compromise the exercise of powers by the Director of Public Prosecutions (DPP). The same applies to the arresting powers assigned to the police by law and those entrusted upon the Directorate on Corruption and Economic Offences (DCEO).”
The court outlined that it can only intervene through a review against abuse of such powers or where there are unconstitutional acts. However, Mochoboroane and Metsing want the court to overturn its judgment.
They have asked the court to cancel the order it made to the effect that Clause 10 was unconstitutional so that treason charges they are facing cannot be preferred until the ongoing national reforms process is complete. Their constitutional application has been postponed to allow parties to file papers.
Metsing brought to the attention of the court the 2018 MOU that government and opposition entered into to the effect that he (Metsing) could not face a criminal process pending the outcome of the National Reforms Process. He said while he was summoned to appear before the High Court on February 25, 2020, the trial was registered sometime in 2018.
Metsing says it is surprising that the indictment charges them with treason and charges alleged to have happened some four years ago, adding that the case was, however, registered in 2018.
“The year 2018 is important in that during 2018 I had been in exile in South Africa having left Lesotho in 2017 after attempts to kill me had been made in what appeared to have been politically motivated actions. Fearing for my life I stayed for a period in South Africa until I returned following MOU.
“It will be seen from the memorandum that the government had to make an undertaking to ensure my security and safety among others. I could not have returned if that had not been the case. On the strength of this Memorandum I have been given appropriate security,” Metsing argues.
Metsing says government and opposition failed to continue with the reforms process, but the signing of the MOU saw government and opposition make progress on the reforms.
He said: “The driving force behind the Constitutional reforms was that SADC had formed the view that political and security instability in the Kingdom was due in part to the outdated provisions of the Constitution.
“Following the recommendations by the SADC Commission of enquiry, the need to undertake constitutional reforms was identified as urgent and as pressing to take the country on a course of security and political stability.
“The memorandum represented a breakthrough in the negotiations as the government and the opposition parties were not pulling in one direction to attain this objective set out by SADC.”
Metsing now argues the fact that he and Mochoboroane were indicted is in breach of Clause 10 read with 9 of the MOU. Clause 9 states that parties agree to fully participate in the reforms process and in utmost good faith until the completion.
“The issuance of the indictment and notice of trial that we should appear in the High Court in respect of this matter is in direct breach of Clause 10 of, read with Clause 9 on the requirement of good faith.
“The undertaking of the government was that prosecution would not proceed until the dialogue and reforms process are complete.
“This political undertaking by the government was within its power as the executive branch of government responsible for political decisions,” he said. Metsing alleges because of the existence of Clause 10, the issuance of the indictment to him and Mochoboroane is abuse of court processes.
“I am legally advised and verily believe that the first respondent, apart from being part of the executive branch in terms of the Constitution, is also by virtue of her right to represent the Crown personally, or through others in criminal proceedings, an officer of this court and cannot be allowed to abuse the process of this court.
“The legislature and the executive being the two branches of the state have taken very seriously the Constitutional reforms process, by enacting the National Reforms Authority legislation…
“The first respondent cannot use the court of law to undermine those deliberate strides in the reform process by asking the court to nullify such efforts in proceeding to deal with my case despite clause 10.”
For his part, Mochoboroane said he participated in the MOU to the effect that Metsing and similarly placed persons with him would be immune to criminal investigations during the reforms process.
He said it was meant to negotiate suitable arrangements that would ensure that all stakeholders would be represented at the national reforms. According to Mochoboroane, the political concern was that there was a danger prosecution of criminal cases could be abused and turned into a weapon to harass political opponents.
There was also a concern that on several occasions those in government appeared to use the police and prosecution authorities to pursue their political opponents and to run a smear campaign against them so that they could lose the support of the citizens.
“Mr Metsing in particular bore the brunt of this practice; the political consensus was that no one is above the law, and that prosecution should give way to the paramount exercise of Constitutional reforms, and that they would be suspended temporarily.
“There is nothing unconstitutional with the temporary suspension and I align myself with first applicant in that regard,” he said.
Mochoboroane added: “I wish to put it on record that the political consensus reached, recorded in clause 10, covers all political leaders who have a stake in the reforms process and in such capacity I am one such leader.
“Mr Metsing was only singled out on the Memorandum so that he could be shown the evidence as he was absent during the discussions. I verily aver that the issuance of summons/notice of trial and indictment violates the political agreement reached on the 16th of October 2018 by the executive branch of government and the opposition politicians.
“This constitutes an abuse of court process that is looks suspiciously political. We were never informed by the government that it has now changed its attitude and wanted to press ahead with prosecutions of those involved in the national reforms process even after the order of this court nullifying Clause 10.”
Both Mochoboroane and Metsing contend the timing of their indictment is wrong in that the country is in a volatile political situation when Prime Minister Motsoahae Thabane and his partners are at loggerheads, with many of them pushing for him to step down.
Mochoboroane addressed the media after the court appearance on Tuesday and said he learned about the treason charges that would be preferred against him long before he was even summoned to court adding that he first heard about the charges having worked for the Public Accounts Committee (PAC).
The MEC leader also links the charges he is facing with the PAC investigation into the multi-million tender for the improvement of Mpilo Boulevard, as well as a tender relating to the building of prefabricated offices by the ministry of Home Affairs.
He has alleged that Mofomobe approached him sometime in 2017 and said he (Mofomobe) would help him meet with the DPP so that the charges against him would be erased.
According to Mochoboroane he declined the request and said he was ready to face the charges if there is any and told Mofomobe that if there is anybody to be charged for treason, it should be from 1998 when the BNP participated in the toppling the government then. Mofomobe has since denied these allegations by the MEC leader.