The Constitutional Court has questioned the legality of the October 2018 agreement between the government and opposition to defer criminal prosecutions of politicians until after the finalisation of the multi-sector reforms.
The court bench comprising of Acting Chief Justice 'Maseforo Mahase and Justices Semapo Peete and Molefi Makara also slammed the SADC facilitator to Lesotho, Retired Justice Dikgang Moseneke, for waiting more than a year to demand that the government stops the treason trial of politicians Mothetjoa Metsing and Selibe Mochoboroane.
They said Justice Moseneke was just a facilitator who could not usurp his SADC principal South African President Cyril Ramaphosa's responsibility to append his signature to any binding SADC document on Lesotho.
The judges made the remarks this week while hearing the application by Messrs Metsing and Mochoboroane to rescind their 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 reforms.
The duo was 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 Mr Thabane.
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 29 March 2020 letter to then Prime Minister Thabane, saying SADC was against the plans to prosecute Messrs Metsing and Mochoboroane.
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.
Justice Mahase questioned if SADC had indeed endorsed the October 2018 agreement, saying it did not bear Justice Moseneke's signature.
She said she was also puzzled why Justice Moseneke never reacted to their November 2018 judgement declaring clause 10 unconstitutional for over a year and only did so when Messrs Metsing and Mochoboroane lodged their constitutional application.
"The (government-opposition) memorandum of understanding does not bear signature of Justice Moseneke unlike the letter which he wrote on 29 March 2020," Justice Mahase said.
"Why didn't SADC sit down before 29 March 2020 to say criminal trials should be held in abeyance? Even the SADC letter conveniently surfaces months after we passed judgement. It is only dated 29 March 2020. The writer (Justice Moseneke) seems to say he only learned recently about the treason charges and I do not know what that 'recently' means.
"We are now seized with a matter asking us to rescind a judgement that had been in existence for 15 months. The very person who is the facilitator says he just 'recently' learned about our November 2018 judgement. He has been quiet all along and has never said anything about our judgement. When other people (Messrs Metsing and Mochoboroane) are supposed to be joined to a trial as per the recommendation of SADC, he now says he is surprised. What a coincidence.
"Was the writer party to the memorandum of understanding and where in this clause 10 can I be convinced that Justice Moseneke actually participated in the agreement?" the acting chief justice said during exchanges with lawyers.
Fellow Judge Makara repeated his sentiments, first expressed last week, that they would not be swayed by SADC but would only interpret the law when delivering judgement on Messrs Metsing and Mochoboroane's application.
"What is legal should be treated as such. There were days when Lesotho was a sovereign state which could solve its problems. It is a fact that now we have to run to South Africa and SADC to intervene. International law comes from international institutions such as SADC and the United Nations...
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"But we should interrogate international laws within the context of Lesotho. Lesotho is a monarchist sovereignty and whatever law is made by an international institution, for that law to become municipal law, parliament must enact it into law.
"When I look at the latest document (Justice Moseneke's letter), one would expect that a document of such significance would bear a signature of the SADC authorities. But we only see that of Justice Moseneke. This is a corporate document where the minutes would have to be endorsed by the bosses of the company. Justice Moseneke cannot be designated with the managing director's position.
"He is just a facilitator and a facilitator works under a superior and this would be the president of South Africa. One would expect that his managing director in SADC would also have their signature but the only signature is that of the facilitator. Justice Moseneke says anything made outside the spirit of SADC would be out of order.
"My question is "who is he?" can a judicial officer really make that kind of remark when a matter is pending. You cannot make that kind of averment, what audacity, what authority did he command when he made that kind of remark, what is he," Justice Makara asked rhetorically.
Messrs Metsing and Mochoboroane's lawyer, Advocate Motiea Teele, then retorted that the judges were wrong to question the legality of the agreement now when they had not done so when it was first challenged in 2018.
He said Lesotho was an integral member of SADC and ought to respect SADC decisions including the directive to postpone the treason trial. He also defended Justice Moseneke, saying he "would be the last person to interfere with court proceedings".
His (Justice Moseneke's) letter was written in the context that the prosecution of cases is the executive's responsibility hence the letter is addressed to the head of government (former PM Thabane). It is the responsibility of the executive to attend to issues related to clause 10. The letter does not say you (judges) should decide on this matter. He is not talking as a judge but a facilitator to a political deadlock," Adv Teele said.
However Adv Christopher Lephuthing, who represented DPP Motinyane, argued that Justice Moseneke's letter should be dismissed by the court because it was not an official SADC document. He said there was no record of the October 2018 agreement being discussed and endorsed by the SADC heads of state and therefore it could not be a legitimate SADC brokered deal.
SADC used communiques to convey its decisions. Justice Moseneke's letter and the 2018 agreement were not SADC communiques, he argued.
"We should avoid speculation when it comes to Justice Moseneke. He would not have authored the letter if he knew the court had nullified clause 10. He was an activist lawyer who participated in many international forums and he would not do anything to undermine the rule of law..," said Adv Lephuting, suggesting that Judge Moseneke could have been misled into writing the letter or he simply wrote it out of ignorance that Clause 10 had already been outlawed.
In an event, the applicants were trying to rely on an agreement which was not officially endorsed by SADC. Justice Moseneke would have signed the agreement if he was involved in its crafting, argued Adv Lephuting, further suggesting the former deputy chief justice of South Africa could have been lured into writing it as politicians sought an alibi to forestall their trial.
"Strangely, his letter comes opportunistically after the applicants have asked for postponement of their trial.
"It (Moseneke's 29 March 2020 letter) would not have been part of these proceedings if the (constitutional) matter (to stop the treason trial) was heard in February when it was filed. The letter has now assumed some importance to this case. The question would be what would be the basis of their case if this letter was not there?
"Is this document (agreement) a contract, treaty or convention? It is simply a promise which has no record of being discussed by SADC at the level of the double troika or heads of state meetings. We have a lot of documents which were signed in Maseru and taken to SADC to be discussed and turned into binding decisions, not this faceless document. SADC communicates its decisions through communiques and there has never been one regarding clause 10.
"The 2018 agreement is a scam and that is why even the people who signed it, (former deputy prime minister) Mr (Monyane) Moleleki and (his successor) Mr (Mathibeli) Mokhothu, cannot tender affidavits to support it," Adv Lephuthing said.
He said the treason charges against Messrs Metsing and Mochoboroane should go ahead because they were in line with SADC recommendations for high profile suspects to be charged for the impunity in Lesotho from 2014 onwards. He said indicting the duo would not affect the reforms process as they were not members of the National Reforms Authority.
"The present government is bound to implement the SADC recommendations. SADC and the European Union pledged funds for the trials to be expedited and there is need for foreign judges who were secured to finalise these cases within the timeframe of their contracts," Adv Lephuthing said.
The case will continue on 13 to 15 July 2020.