{"id":28944,"date":"2023-05-22T09:30:00","date_gmt":"2023-05-22T09:30:00","guid":{"rendered":"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2"},"modified":"2023-05-22T09:30:00","modified_gmt":"2023-05-22T09:30:00","slug":"controversy-continues-to-stalk-clause-10-2","status":"publish","type":"post","link":"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2","title":{"rendered":"Controversy continues to stalk Clause 10"},"content":{"rendered":"

Africa-Press – Lesotho. <\/strong><\/span>The controversy surrounding Clause 10 of the 2018 Memorandum of Understanding (MOU) between government and opposition parties deepened this week when judges questioned its status. Justice Semapo Peete on Monday questioned the legal status of the clause in the ongoing debate before the High Court (sitting as the Constitutional Court), seeking clarity on whether the clause was ever elevated to the status of law. \u201cWhat is the legal status of this clause? Were its authors making law? Is it the concern of this court to declare an agreement between parties unconstitutional?\u201d he asked.
\nThe questions were posed to Advocate Motiea Teele KC, a lawyer representing Lesotho Congress for Democracy (LCD) and Movement for Economic Change (MEC) leaders, Mothetjoa Metsing and Selibe Mochoboroane in the constitutional challenge to the impugned clause. They two politicians are challenging their indictment before the High Court after treason charges were preferred against them. The country\u2019s prosecuting authority, Director of Public Prosecutions Advocate Hlalefang Motinyane, is accusing the two of involvement in the 2014 events leading to the collapse of former Prime Minister Motsoahae Thabane\u2019s government. They appeared before High Court Justice Onkemetse Tshosa on March 2 but could not be formally charged because of the constitutional challenge to their indictment.
\nThe duo is to be joined along with retired army commander, Lieutenant General Tlali Kamoli and four other soldiers who are already in detention. The soldiers have been charged with the murder of police Sub-Inspector Mokheseng Ramahloko and it is expected treason charges will also be preferred against them. However, Metsing and Mochoboroane argue government is bound by the 2018 MOU between government and opposition, therefore treason charges against them should be put on hold.
\nClause 10 of the MOU states that Metsing and similarly placed persons with him will not be subject to prosecution during the ongoing National Reforms process. The Constitutional Court comprising; Justices \u2019Maseforo Mahase (ACJ), Molefi Makara and Semapo Peete in 2018 nullified the clause for being discriminatory. This was after it was challenged by former army boss, Lieutenant General Maaparankoe Mahao\u2019s family, Police Constable (PC) Mokalekale Khetheng\u2019s family and one Tebello Senatla. Despite the Constitutional Court ruling, the SADC facilitation team to Lesotho through its special envoy \u2013 Justice Dikgang Moseneke \u2013 said Lesotho should ensure compliance with the 2018 MOU, including the impugned clause.
\nHe (Justice Moseneke) on March 29 wrote to former Prime Minister Thabane urging him to ensure the government complied with the MOU. He wrote the letter after realising Metsing and Mochoboroane are facing treason charges. Part of his letter read: \u201cNo political leaders should be charged or prosecuted until the dialogue and reforms process in the Kingdom of Lesotho has been duly and fully completed.\u201d In a bid to avoid the charges, Metsing and Mochoboroane now want the court to rescind its judgment. They have attached Justice Moseneke\u2019s letter to their court papers and say rescission is necessary having not been cited when clause 10 was nullified. They were not parties to the previous application and therefore want to intervene so as to oppose it.
\nRescission will ensure that the clause remains in effect, thereby ensuring that the two leaders are immune to prosecution, at least until reforms are complete. During the arguments on Monday, Acting Chief Justice (ACJ) asked Advocate Teele: \u201cWhat does SADC recommendations say about those implicated in criminal offences? Don\u2019t they say such people should be charged?\u201d Teele responded that while recommendations say those implicated should be charged, they should be read in context including Justice Moseneke\u2019s letter in which he urged that his clients\u2019 prosecution should be put on hold. Teele said SADC\u2019s decisions are carried by different offices designated as such, and therefore Justice Moseneke is one such adding Lesotho cannot ignore SADC decisions.
\nFurther, Justice Mahase expressed concern that Justice Moseneke\u2019s letter conveniently surfaced at a time when there are other people who have to be charged as per SADC recommendations and also that it appears months after the court had ruled on the clause. She also asked whether Judge Moseneke\u2019s letter was endorsed by SADC as it bears only his signature, not that of any other SADC dignitary. \u201cWhy have SADC not sat down and make it in clear terms that an amendment has been made to its recommendations to Lesotho? I am also aware of the fact that Judge Moseneke\u2019s letter surfaces some months after we have passed judgment on the matter.\u201d
\nJudge Mahase added: \u201cHe states in his letter that he had recently learned about treason charges, whether he knows judgment has been available some 13 months ago, we do not know.\u201d Judge Peete weighed in and said he is of the opinion that an amendment to the clause would seek to solve the long-drawn litigation. He proposed inclusion of \u201cwithout prejudice to the constitution\u201d that he said would solve the challenges if added to the clause. Advocate Teele replied that there is nothing convenient about Judge Moseneke\u2019s letter but that it a SADC document that the court should accept. He told the court that the reading of the letter indicates that it has SADC\u2019s blessing and that if the court accepts to rescind its judgment, they will seek affidavits from SADC authorities, including Moseneke.
\nFor his part, Justice Makara questioned Judge Moseneke\u2019s remark in the letter when he said \u201cit should be stated clearly that any action or process in contravention of the letter and the spirit of the MOU, signed on 16 October, 2018, will not be welcomed by the Southern African Development Community (SADC).\u201d Justice Makara posed the question: \u201cCan a judicial officer despite a pending matter in court make such a statement?\u201d The judge also asked the authority judge Moseneke was banking on to make such a statement to which Teele replied it was a matter of urgency.
\nAdvocate Teele said judge Moseneke understood that modern government communicates with not only departments but also arms of government and that his letter does not say how the decision should be make on the charges. Teele also argued that in suggesting that prosecution be put on hold until reforms have been completed, Clause 10 does not interfere with the powers conferred upon the DPP in terms of the constitution. He said it is the duty of government to voice its concern to the DPP if it feels it is in the interest of justice that charges be put on hold. Advocate Christopher Lephuthing maintained that Justice Moseneke would not have authored the letter aware of the court\u2019s ruling that clause 10 had been declared unconstitutional. Lephuthing represents the DPP in the matter.
\nHe said it was bizarre that complainants want the court to agree to delay their trial yet at the same time they complain that the trial has been delayed since 2014 and are only being charged now. Lephuthing said all Metsing and Mochoboroane complain about should have been raised before the trial judge (Judge Tshosa) who would hear all their complaints. Lephuthing told the court that in its recommendations to Lesotho the SADC made it clear that those implicated should be prosecuted using best international standards and best standards. Lephuthing added this meant equality before the law and that selective justice needs to be avoided.
\n\u201cIt will not be in the interest of justice that Mr Metsing and Mr Mochoboroane be separated from Mr Kamoli who is in detention as we speak; we cannot operate like that,\u201d he continued. Lephuthing also dismissed Metsing and Mochoboroane\u2019s submission that their trial be put on hold for them to participate in the reforms. He told the court both Metsing and Mochoboroane are not members of the National Reforms Authority. He also said the court should be aware of the fact that the complainants\u2019 trial has a bearing on many other issues, including foreign judges\u2019 contracts that are set to expire soon.
\nFurther, Lephuthing told the court that the 2018 MOU content indicates that whether Metsing was available or not, reforms would still go ahead. This, he said, is an indication that the court needs not revisit its judgment. He described the MOU as a scam that was never endorsed by SADC but \u201ca document between former Deputy Prime Minister Monyane Moleleki and Mothibeli Mokhothu who was leader of opposition then.\u201d \u201cYou cannot be told that this document was discussed anywhere at SADC. This is not the first time SADC intervenes in Lesotho issues and in the past SADC has always communicated through a communique\u0301 and we have no such about Clause 10,\u201d he said. Lephuthing added, \u201ca document endorsed by SADC has signatures from the regional body.\u201d The case has been postponed to July 13, 14 and 15.<\/p>\n

For More News And Analysis About Lesotho<\/a> Follow Africa-Press<\/a><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Africa-Press – Lesotho. The controversy surrounding Clause 10 of the 2018 Memorandum of Understanding (MOU) between government and opposition parties deepened this week when judges questioned its status. Justice Semapo Peete on Monday questioned the legal status of the clause in the ongoing debate before the High Court (sitting as the Constitutional Court), seeking clarity […]<\/p>\n","protected":false},"author":84,"featured_media":28943,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2,8,12],"tags":[233,246,245],"class_list":["post-28944","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-all-news","category-homepage-english","category-policy","tag-africa-press","tag-africa-press-lesotho","tag-lesotho"],"yoast_head":"\nControversy continues to stalk Clause 10 - Lesotho<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Controversy continues to stalk Clause 10\" \/>\n<meta property=\"og:description\" content=\"Africa-Press – Lesotho. The controversy surrounding Clause 10 of the 2018 Memorandum of Understanding (MOU) between government and opposition parties deepened this week when judges questioned its status. Justice Semapo Peete on Monday questioned the legal status of the clause in the ongoing debate before the High Court (sitting as the Constitutional Court), seeking clarity […]\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2\" \/>\n<meta property=\"og:site_name\" content=\"Lesotho\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/AfricaPressTunisiaa\" \/>\n<meta property=\"article:published_time\" content=\"2023-05-22T09:30:00+00:00\" \/>\n<meta name=\"author\" content=\"cfeditoren\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"cfeditoren\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"7 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2#article\",\"isPartOf\":{\"@id\":\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2\"},\"author\":{\"name\":\"cfeditoren\",\"@id\":\"https:\/\/www.africa-press.net\/lesotho\/#\/schema\/person\/068c7ab4e9634ae78ec5d54ec46598bb\"},\"headline\":\"Controversy continues to stalk Clause 10\",\"datePublished\":\"2023-05-22T09:30:00+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2\"},\"wordCount\":1454,\"commentCount\":0,\"image\":{\"@id\":\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2#primaryimage\"},\"thumbnailUrl\":\"https:\/\/static.africa-press.net\/lesotho\/sites\/62\/2023\/05\/Beigi1684735297.775616moseneke.jpeg\",\"keywords\":[\"Africa Press\",\"Africa Press-Lesotho\",\"Lesotho\"],\"articleSection\":[\"all news\",\"homepage-english\",\"policy\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2\",\"url\":\"https:\/\/www.africa-press.net\/lesotho\/all-news\/controversy-continues-to-stalk-clause-10-2\",\"name\":\"Controversy continues to stalk Clause 10 - 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