The Lesotho Police Staff Association (LEPOSA) has petitioned the Constitutional Court to strike down a section of the Police Service Act which empowers the police commissioner to dismiss police officers without affording them a hearing.
Section 31(1)(i) of the Police Service Act of 1998 provides that the "Commissioner of Police may dismiss an officer who subverts good order, discipline or lawful authority and tends to bring the Police Service into disrepute".
It does not provide for a hearing before the officer is dismissed. The section has become Police Commissioner Holomo Molibeli's greatest weapon in his ongoing war with the executive members of the militant police union.
Commissioner Molibeli has already used it to dismiss the police union's national treasurer Lance Sergeant 'Mathebe Motseki on 10 August 2020.
He has also initiated processes to sack LEPOSA's secretary general Inspector Moraleli Motloli and public relations officer Motlatsi Mofokeng.
The two sides have been at loggerheads over what the police union views as Commissioner Molibeli's bias and ineptitude in handling police grievances. LEPOSA alleges that since taking charge in August 2017, Commissioner Molibeli has unprocedurally promoted his close allies like Deputy Police Commissioner (DCP) Paseka Mokete and Assistant Police Commissioner (ACP) Beleme Lebajoa.
LEPOSA also accuses him of failing to deal decisively with the thorny issue of police brutality. It has petitioned Prime Minister Moeketsi Majoro to fire him.
Ongoing mediation by an inter-ministerial taskforce has so far failed to stop the infighting which threatens the national security and the police's ability to fight crime. This as Commissioner Molibeli continues to rely on the police act to fire those who oppose him.
This has prompted LEPOSA to file the Constitutional Court application to strike down the specific clause which empowers the commissioner to dismiss his subordinates without affording them a hearing.
LEPOSA, Inspector Moraleli Motloli and Lance Sergeant Motseki are the applicants. Commissioner Molibeli, Police and Public Safety Minister 'Mamoipone Senauoane and Attorney General Haae Phoofolo are the first to third respondents respectively.
In their court papers filed this week, the applicants want the court to strip Commissioner Molibeli's powers to fire them without a hearing.
They also want the court to revoke Commissioner Molibeli's dismissal of Lance Sergeant Motseki.
They further argue that Section 31(1)(i) of the Police Act which Commissioner Molibeli has relied upon to dismiss their members should be declared unconstitutional because it is inconsistent with sections 12(8) and 18 of the constitution which provide for a fair hearing and freedom from discrimination respectively.
Section 12(8) of the constitution states that, "any court or adjudicating authority... shall be independent and impartial and where proceedings... are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time".
Section 18 of the constitution states that, "... no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority".
Before the main application is heard, the Constitutional Court comprising of Justices Thamsanqa Nomngcongo (presiding), Sakoane Sakoane and Polo Banyane will have to first rule on the applicants' preliminary application to bar Adv Phoofolo from hiring a private lawyer to represent him and his co-respondents in the matter.
Adv Phoofolo had hired Adv Tekane Maqakachane to represent them. But according to LEPOSA's lawyer, Advocate Hoolo Nyane, the attorney general cannot hire a private lawyer to represent the state. He should either appear himself or instruct juniors from his office to handle the case.
"The legal framework is that the attorney general cannot instruct a private practitioner because that practice is not sourced from the constitution or the Attorney General Act of 1994 which are the legal frameworks regulating the office of the Attorney General," Adv Nyane said when the two parties appeared in court on Tuesday.
He added: "Section 5(1) of the Attorney General Act says in the exercise of his functions, the attorney general shall be assisted by staff appointed in terms of the Public Service Order of 1970. This brings overwhelming clarity on what we mean by officers subordinate to the Attorney General."
Adv Maqakachane counter-argued by saying the Attorney General Act was silent on the prerogative of the king or attorney general to appoint lawyers to represent the state. Therefore, there were no limiting factors as to whom the attorney general could ask to represent the state, he argued.
After hearing both sides' arguments, the Constitutional Court reserved judgement on this preliminary issue. It will deliver its verdict on Monday.