JUDGE Molefi Makara says the Southern African Development Community (SADC) cannot dictate terms to Lesotho's judiciary as it is an independent institution.
SADC has through its interlocuter, retired South African Deputy Chief Justice Dikgang Moseneke, asked Lesotho to stop all prosecutions of politicians until after the completion of the multi-sector reforms it recommended in 2016.
But Justice Makara this week strongly slated the regional body. He said SADC could say "whatever it wished" on critical issues like the October 2018 agreement between the government and the opposition to defer all criminal trials of politicians. However, Lesotho's judges would pass their judgements on the basis of the law and not the regional body's directives.
Justice Makara made the remarks during the Constitutional Court application by politicians, Mothetjoa Metsing and Selibe Mochoboroane, for the court to rescind its 22 November 2018 judgement outlawing Clause 10 of the government-opposition agreement stipulating that politicians cannot be tried for any crimes until after the implementation of the multi-sector reforms.
The October 2018 agreement between former Prime Minister Thomas Thabane's government and the opposition was brokered by SADC.
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".
Messrs Metsing and Mochoboroane want to use Clause 10 to avoid being tried for treason until after the completion of the reforms process.
They were charged with treason alongside former army commander Lieutenant General Tlali Kamoli and an army officer, Captain Litekanyo Nyakane, over the 30 August 2014 attempted coup against the first government of former Prime Minister Thabane. Mr Metsing's Lesotho Congress for Democracy (LCD) was in coalition with the All Basotho Convention and Basotho National Party.
He was deputy prime minister at the time of the attempted coup while Mr Mochoboroane was Communications minister and LCD secretary general. Mr Mochoboroane is currently the leader of Movement for Economic Change and the Minister of Development Planning.
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 the Director of Public Prosecutions, (DPP) Advocate Hlalefang Motinyane, from prosecuting them because of the October 2018 agreement.
Justice Moseneke subsequently penned a letter to then Prime Minister Thomas Thabane, saying SADC was against the plans to prosecute Messrs Metsing and Mochoboroane.
In his strongly worded 29 March 2020 letter, Justice Moseneke informed 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.
But in a clear rebuttal of SADC and strong restatement of the judiciary's independence on Tuesday, Justice Makara said the constitutional bench will pass its judgement on Messrs Metsing and Mochoboroane's application, basing itself on the interpretation of the law and not Justice Moseneke or SADC's wishes.
"SADC can say whatever it wishes to say but at the end of the day we, as judges, will apply our minds on the law visa-a-vis the 2018 memorandum of understanding. Retired Justice Moseneke is our senior and we respect him, but he cannot usurp our powers, hence I ask whether he endorsed the (2018 government-opposition) agreement in his capacity as a judge or not," Justice Makara said.
Justice Makara was part of the Constitutional Court bench which 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. Justice Makara presided over the 2018 application by Mr Khetheng alongside Acting Chief Justice 'Maseforo Mahase and Justice Semapo Peete. The trio is now being asked to set aside its 2018 verdict.
Before Justice Makara's remarks on Tuesday, Messrs Metsing and Mochoboroane's lawyer, Advocate Motiea Teele, had argued that his clients should have been cited as respondents when the constitutionality of clause 10 was first challenged in November 2018.
"The memorandum of understanding (between government and political leaders) clearly mentions the first applicant (Mr Metsing) and I am perplexed as to how he was not cited or served when clause 10 was challenged," Adv Teele said.
"Section 12 of the constitution is clear that all persons should be given a fair trial. Even if Mr Metsing was out of the country then, service of the application should have been done at his usual residence. The court should not have gone ahead with the matter in 2018 because the applicants (Messrs Metsing and Mochoboroane) were not cited as respondents.
"The second applicant (Mr Mochoboroane) explains in his affidavit that he participated in the negotiations which led to the memorandum. It was necessitated by the fear that prosecutions would be weaponised against politicians," Adv Teele argued.
He further argued that the duo should not be prosecuted because the government was bound to obey commitments it had made to the opposition in terms of the October 2018 agreement.
"Clause 10 does not violate the constitution. It would not be right to elevate it to some complex legal document that can be interrogated through the constitution. The 2018 memorandum was a deadlock breaking mechanism on the reforms. It was a politicians' agreement to arrive at some understanding for the sake of peace. It is the fundamental requirement of the constitution that the government must obey its undertakings," Adv Teele argued.
DPP Motinyane's lawyer, Adv Christopher Lephuthing, objected saying that Mr Mochoboroane had no legal authority to challenge clause 10 because it only catered for politicians who were in exile at the time the government-opposition agreement was signed.
"Mr Mochoboroane was never in exile and he was never contemplated in the agreement. He wants to intervene in a completed matter. The pragmatic approach is to separate Mochoboroane from Metsing because their circumstances are different," Adv Lephuthing said in his point of law.
The hearing continues today and Adv Teele is expected to continue with his submissions before Adv Lephuthing responds.