THE Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, insists the treason trial of politicians Mothetjoa Metsing and Selibe Mochoboroane must go ahead despite attempts by the duo and the Southern African Development Community (SADC) to defer it until after the implementation of the multi-sector reforms.
Adv Motinyane says this in response to Messrs Metsing and Mochoboroane's latest attempts to postpone their Constitutional Court application to stop their treason trial. They want the case postponed to give the new Moeketsi Majoro-led government a chance to issue a directive to stop the trial.
Former Deputy Prime Minister Metsing leads the opposition Lesotho Congress for Democracy (LCD) while Mr Mochoboroane leads the Movement for Economic Change (MEC). The MEC is a member of the new coalition whose principal partners are Dr Majoro's All Basotho Convention (ABC) and Deputy Prime Minister Mathibeli Mokhothu's Democratic Congress (DC). Its leader, Mr Mochoboroane was appointed Development Planning Minister in the new government.
Messrs Metsing and Mochoboroane have been charged with treason alongside former army commander Lieutenant General Tlali Kamoli and an army officer, Captain Litekanyo Nyakane.
The charge is in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thabane. Mr Metsing was deputy prime minister at the time of the attempted coup while Mr Mochoboroane was Communications minister and LCD secretary general.
Lt-Gen Kamoli and Captain Nyakane are already in prison awaiting trial for the murder of police Sub-Inspector Mokheseng Ramahloko during the attempted coup.
The treason trial failed to take off in the High Court on 25 February 2020 after Messrs Metsing and Mochoboroane filed a Constitutional Court application for an order barring Adv Motinyane from prosecuting them because of the October 2018 agreement between the former Thabane-led government and the opposition halting any trials of politicians until after the completion of the reforms.
Clause 10 of that agreement states that "Mr Metsing and similarly placed persons in exile will not be subjected to any pending criminal proceedings during the dialogue and reforms process".
The Constitutional Court has previously outlawed this particular clause 10 after the late police constable Mokalekale Khetheng's father, Thabo Khetheng, petitioned the court to declare it unconstitutional saying self-serving agreements between politicians could not outstrip the constitution. PC Khetheng was killed by fellow police officers on 26 March 2016.
But Messrs Metsing and Mochoboroane petitioned the same court on 25 February 2020 to rescind its 22 November 2018 judgement outlawing Clause 10.
They now want the court to postpone that application to give the new government an opportunity to order Adv Motinyane to stop their trial in line with a recent directive by SADC to ex-Prime Minister Thabane.
Retired South African Judge Dikgang Moseneke, who leads SADC's facilitation in Lesotho on behalf of South African President Cyril Ramaphosa, wrote to Mr Thabane informing him that the trial should be stopped in line with the 2018 agreement to defer criminal trials until after the implementation of the multi-sector reforms.
In his strongly worded letter on 29 March 2020, Justice Moseneke informs Mr Thabane that "any action or process in contravention of the letter and the spirit of the government-opposition agreement will not be welcomed by the SADC".
At the time of the collapse of his government on 11 May 2020, Mr Thabane had not acted on Justice Moseneke's directive nor had he publicly pronounced himself on the issue.
In his court papers filed for the postponement of their constitutional case, Mr Mochoboroane says the government wants to consult before making a final decision on whether or not the treason trial must proceed. He argues that this does not interfere with the DPP's independence as she is only a lawyer acting on behalf of the state and as such the state has a right to give her fresh instructions pertaining to any case.
He further argues that Lesotho has an obligation to implement SADC-brokered agreements like the 2018 government-opposition agreement to stop all trials of politicians. He says "Lesotho cannot invoke its own municipal law to avoid its international obligations".
"I aver that the treason charges are not a project of the DPP alone but she acts for and on behalf of the state which is her client in such matters. There is nothing untoward when the client seeks to give further and fresh instructions to its lawyer.
"... The Minister of Law (Prof Mahao) has informed me that they are going to consult broadly with various authorities including the DPP, the attorney general (Adv Haae Phoofolo) as well as the SADC facilitator (Justice Moseneke). The facilitator, as this court knows, acts for and on behalf of SADC and very recently wrote to the government of Lesotho... decrying the fact that the treason charges had been preferred against us...
"We have been legally advised and verily believe that the agreement in which clause 10 appears constitutes an international obligation of Lesotho to carry out the decisions of SADC and that Lesotho cannot invoke its own municipal law to avoid its international obligations," Mr Mochoboroane states.
But Adv Motinyane is having none of it. In her replying affidavit filed on Monday, she is adamant that the trial should go ahead without further delay. She insists that the judiciary is independent of the executive. It is therefore "unacceptable" for Messrs Metsing and Mochoboroane or the executive to interfere with the its decision to charge the duo with treason.
"I have satisfied myself that the applicants have a case of treason to answer. It would be unwise in my view, to submit my decision to charge the applicants for reconsideration by the executive only because there is a new Minister of Law, Leuta Nqosa Mahao, and a new Prime Minister, Moeketsi Majoro. For the record, my position on the charges faced by applicants has not changed," Adv Motinyane said. She further argues that the treason trial is in line with recommendations of the Justice Mpaphi Phumaphi-led 2015 SADC Commission of Inquiry for the prosecutions of politicians and others accused of crimes and other human rights violations from 2014 onwards.
She argues clause 10 of the agreement had already been struck down by the Constitutional Court judgement of November 2018 and "the (March 2020) letter of Retired Deputy Chief Justice Moseneke (to Mr Thabane) does not make clause 10 constitutional".
"There are no instructions that can suggest that clause 10 is constitutional when it had been declared unconstitutional by this honourable court. For the record, my instructions are to proceed with the treason charges from all points of view," Adv Motinyane states.
Adv Motinyane also says in any event the new government had already indicated that it would not interfere with the trials and that Justice Moseneke's letter had no bearing on the treason case.
She said she has already consulted with Prof Mahao and Adv Phoofolo who indicated that the trial must go ahead.
She said the trial was long overdue and there was no justification for further delaying it especially after the government had sought SADC help to secure foreign judges to try this and other high-profile cases.
The DPP also states that her office is independent and "not part of the executive branch of government".
"For the record, I am not part of the executive branch if our regime of separated powers is put into proper perspective and context. It is a component of the doctrine of separation of powers that the courts have a constitutional obligation to ensure that the exercise of powers by the branches of government occurs within constitutional bounds."
She said the 22 November 2018 judgement on clause 10 essentially prevented other branches of government from usurping and or interfering with her prosecutorial powers. That judgment must therefore be respected and trying to have it re-authored was akin to clutching at straws.