Prime Minister Thomas Thabane has launched a desperate bid to escape murder charges by petitioning the Constitutional Court for an order that a sitting prime minister cannot be charged with any crime.
This after the police charged him with the 14 June 2017 murder of his estranged wife, Lipolelo, and subsequent revelations by Deputy Commissioner of Police (DCP) Paseka Mokete that the police had strong evidence to nail the premier and other suspects in the murder which occurred just two days before Dr Thabane was sworn in for his second stint as premier.
While Lesotho's constitution does not explicitly state whether or not a sitting prime minister can be prosecuted, some constitutions in comparable jurisdictions like Zimbabwe state that a sitting head of state cannot be prosecuted. In the case of Lesotho, His Majesty King Letsie III is the head of state and not the prime minister. Some legal experts who spoke to this publication on condition of anonymity said the Constitutional Court could use such comparable laws as a basis for determining the premier's application and if this happened, it was likely that it would be ordered that Dr Thabane was not the head of state and should therefore stand trial for murder.
Dr Thabane's wife, 'Maesaiah, has already been charged with the Lipolelo murder and the attempted murder of the latter's friend, Thato Sibolla, who sustained gunshot wounds after being shot at while travelling in the same car with Lipolelo.
She is out on M1000 bail and is due to return to court on 17 March 2020. Dr Thabane was also charged with murder and attempted murder but failed to show up for his eagerly-awaited hearing in the Maseru Magistrates' Court last Friday. His Senior Private Secretary, Thabo Thakalekoala, later issued a statement saying the prime minister had gone to Bloemfontein to seek medical attention for an undisclosed ailment and doctors had prescribed a sick leave until 27 February 2020.
However, on Monday, the premier surprised many including the police and some of his cabinet ministers by appearing at the Maseru Magistrates' Court at about 9.45am in the company of 'Maesaiah, and his close ally, Water Minister Samonyane Ntsekele.
But instead of standing in the dock to face charges, he sat pensively in the gallery with his wife and Mr Ntsekele while his lawyer, Attorney Qhalehang Letsika, petitioned the court for leave to apply to the Constitutional Court for a determination as to whether or not a sitting prime minister can be charged with any crime.
Magistrate Phethise Motanyane granted Dr Thabane leave to apply to the Constitutional Court for that determination after hearing submissions from Mr Letsika and Crown Counsel Advocate Mpati Motṧoane.
Adv Motṧoane got the proceedings underway by telling the court that the Director of Public Prosecutions (DPP), Hlalefang Motinyane, was not ready to charge Dr Thabane as she still had to "finalise certain issues with the police".
"I have been instructed by the Director of Public Prosecutions that the suspect (Dr Thabane) who was supposed to be charged today should not be remanded because there are certain issues which need to be ironed out by the DPP and the police in that the suspect is a sitting prime minister," Adv Motṧoane said.
Adv Letsika then moved his application to have the Constitutional Court determine whether or not Dr Thabane can be prosecuted while he is a sitting prime minister.
"Section 128 (1) of the constitution states that if any party to the proceedings raises a question of law, the subordinate court is obliged to refer constitutional questions to the High Court sitting as the Constitutional Court," said Adv Letsika.
"My client (Dr Thabane)'s question would be whether a member of the cabinet can be indicted for a criminal offence during his tenure in office. Can a sitting prime minister be subjected to criminal prosecution? Does the prime minister enjoy criminal immunity from prosecution whilst still in office?
"The High Court sitting as the Constitutional Court can determine that as it is not within your lordship (Magistrate Motanyane)'s jurisdiction. My client says that by virtue of being the prime minister, he cannot be indicted while still in office," argued Attorney Letsika.
Section 128 (1) of the constitution which states that "where any question as to the interpretation of this Constitution arises in any proceedings in any subordinate court or tribunal and the court is of the opinion that the question involves a substantial question of law, the court may and shall, if any party to the proceedings requests, refer the question to the High Court (sitting as the Constitutional Court)".
Adv Motṧoane then argued that the defence's application for the matter to be referred to the Constitutional Court was premature because Dr Thabane had not yet been charged with murder.
"Section 128 of the constitution states that a referral may be made where a (constitutional) question has been raised within the proceedings. Proceedings have not started as the suspect has not been charged. The issue has been raised prematurely as there is no accused person. The prosecution objects (to the application for leave to approach the Constitutional Court)," Adv Motṧoane said.
However, Mr Letsika counter-argued that the mere fact of Dr Thabane appearing in court was enough to warrant the referral of the matter to the Constitutional Court.
After hearing the defence and state arguments, Magistrate Motanyane adjourned proceedings for more than 30 minutes before ruling that the case must be referred to the Constitutional Court to decide if Thabane or any sitting prime minister can be charged.
"Having heard submissions from both sides, I find that there is indeed a substantial question of law raised (by the defence)," said Magistrate Motanyane.
"The defence has moved an application to refer the matter to the High Court (sitting as the Constitutional Court). The question that the defence seeks to refer to the constitutional court is whether a sitting prime minister can be criminally charged. I must admit from the outset that this is indeed a novel case in our country whose determination we eagerly await.
"The application for the referral of the matter to the High Court is granted as prayed," Magistrate Motanyane ruled.
All the while Dr Thabane appeared lost in his own world, with his head cupped in his hands. He did not communicate or make any eye contact with either 'Maesaiah or Mr Ntsekele who sat next to him throughout the proceedings.
His Monday court appearance caught many by surprise including the police and some of his cabinet ministers such as Chalane Phori (Small Business Development, Cooperatives and Marketing and Moeketsi Majoro (Finance) who arrived after the proceedings had already started.
There was none of the tight security which was observed when Dr Thabane was expected to appear in court last Friday. Initially, the courtroom had few people but it swelled and filled to the brim as news of Dr Thabane's appearance quickly spread around Maseru.
More benches had to be brought in to accommodate more people while others had to be turned away when the sitting space ran out. DCP Mokete and his investigating team arrived late in court as they were not initially aware there would be any proceedings.
Apart from Messrs Ntsekele, Majoro and Phori, other cabinet ministers, Halebonoe Setṧabi (Trade and Industry), Keketso Sello (Transport), Mokoto Hloaele (Education and Training), Tefo Mapesela (Forestry, Range and Soil Conservation), Leshoboro Mohlajoa (Office of Prime Minister) and Mokherane Tsatsanyane (Deputy Minister of Local Government) also showed up in solidarity with the premier.
Dr Thabane's two sons, Toka and Potlako were also present to support their father as were several legislators from Dr Thabane's All Basotho Convention (ABC).
Another notable person in attendance was Acting Chief Justice 'Maseforo Mahase's husband, Thabiso Mahase. Justice Mahase controversially granted 'Maesaiah bail on 5 February 2020 in the same murder case. Judicial sources said the bail application should have been heard by the judge on call, Justice Keketso Moahloli and not Justice Mahase.
Justice Mahase's husband, Thabiso, and son, Teboho, are still to stand trial on allegations of stealing M3 million meant for old age pensions.