FORMER Chief Justice Nthomeng Majara unlawfully instructed the Director of Public Prosecutions (DPP to withdraw charges against two politicians who were being charged with treason. The damning allegations are contained in an urgent application that Advocate Hlalefang Motinyane filed at the High Court this week.
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She told the High Court that when she refused, Prime Minister Sam Matekane began a process to get her sacked.
The two politicians are Health Minister Selibe Mochoboroane, leader of the Movement for Economic Change (MEC), and the Lesotho Congress for Democracy (LCD) leader, Mothetjoa Metsing. They are being charged together with former army commander Lt Gen Tlali Kamoli over the 2014 treason case.
Motinyane wants the High Court to declare the instruction to withdraw the criminal charges against Mochoboroane and Metsing unconstitutional, null and void.
She also wants an order declaring that creation of a position of Special Advisor to the Attorney General “with the purpose of redeploying the applicant to that office is unconstitutional, null and void”.
Motinyane also wants the decision by the Prime Minister to advise or represent to the King to appoint an impeachment tribunal as unconstitutional, null and void.
She also wants an order interdicting and restraining the Prime Minister, the Minister of Justice and the Attorney General “from taking any further process, steps and/or decisions regarding the impeachment process of the applicant until the honourable court has finally determined the matter”.
Motinyane told the court that in September last year Justice Majara, then Minister of Justice, called her to her office where she instructed her to withdraw charges against Metsing and Mochoboroane.
“I refused to follow the instructions and requests aforesaid as they amounted to unlawful and unconstitutional interference with the prosecutorial independence of the DPP,” Advocate Motinyane said.
“The aforesaid instructions and requests were essentially the trigger of the events that would lead to my impeachment,” she said in her affidavit.
She said after her refusal “the state machinery scaled up and this became obvious by events which followed”.
She said shortly after Matekane appointed Richard Ramoeletsi as Justice Minister, a new plan was devised.
She said a new office was created at the office of the Attorney General called the Special Advisor to the Attorney General (SAAG).
“The intention was to remove me from the DPP’s office and to redeploy me or move me to the SAAG,” she said.
She said at no point in time “did I ever envisage leaving the Office of the DPP. My intention and desire was and still is to continue to be DPP until I attain the prescribed age”.
She said on February 13 this year she had a meeting with Ramoeletsi and Attorney General Tsebang Putsoane where the proposal to be the SAAG was tabled.
Ramoeletsi and Putsoane, she said, told her that funds for the new office had already been secured and the job specification had been drafted by Putsoane and his deputy.
“I was shocked to the marrow and obviously embarrassed at the turn of events,” she said.
She said after some discussion Ramoeletsi “requested me to take some time (to) consider the proposal made by the Attorney General”.
“It was clear to me that an offer was the stratagem to achieve through the back door what DPM Majara failed to achieve through her instructions to me: to ultimately have the charges against Mr Metsing and Minister Mochoboroane withdrawn,” she said.
“The alternative way, in the light of my refusal, was to have me removed from the office of the DPP under the guise of redeployment.”
She said on the same day Putsoane called her to his office where he told her that this was meant to shield her from the embarrassment of being dismissed, saying he and Ramoeletsi were “acting on the instructions” to propose her redeployment.
She said Putsoane told her that the redeployment was considered by Putsoane, Ramoeletsi “and their unnamed principal as the soft landing they could find for me”.
She said Putsoane told her that this matter had been the subject of investigation since September 2023, which coincided with her refusal to withdraw charges against Metsing and Mochoboroane as instructed by Justice Majara.
She said Putsoane urged her to go on leave pending her redeployment.
“It was clear from my conversation with the Attorney General that from the day I refused to DPM Majara’s instruction and requests, the state machinery embarked on a new tact, to investigate how I may be removed from office: by dismissal or redeployment to pave way for the grand object of the withdrawal of charges,” she said.
She also said another alternative was to redeploy her to a diplomatic mission.
“The said redeployment was said to be for “operational reasons” and I was to draw same salary and benefits as I did in the office of the DPP,” she said.
“This was not true as the said SAAG was not a statutory office nor would be I be entitled to benefits under Specified Offices Defined Contributory Pension Fund Act 2022.”
“I refused to sign the letters or any arrangement/agreement, always moving the goalposts as a tactful move to avoid immediate reprisal.”
She said on February 27 Ramoeletsi called her to his office where he told her that he did not like to act like other politicians or to move ahead with impeachment because he wanted her as part of his team.
The following day, she said, she wrote Ramoeletsi rejecting the offer, “raising several grounds including constitutional and legal grounds”.
On March 26, she said, Ramoeletsi wrote her saying his intention was to solicit her voluntary consent to vacate the office and become Putsoane’s special advisor and subsequent redeployment to a diplomatic mission.
“According to Minister Ramoeletsi’s explaining away, that would not constitute my removal from the office of the DPP, but rather a deliberate decision on my part to vacate the position of the DPP.”
She said the government was not being truthful as depicted by history of the matter and developments ensued after that.
She said she was never told any reasons why she had to move to the Attorney General’s office as his special adviser or elsewhere.
The proposal, she said, followed her rejection of Justice Majara’s instruction and after the SAAG office was specially created for her.
Having rejected Justice Majara’s instruction and proposal to vacate her office and to be Putsoane’s special adviser, Matekane wrote her on May 14 telling her that he was advising King Letsie III to appoint an impeachment tribunal to investigate if she is still fit for office.
At the time, she said, Matekane had already written a letter to the King without getting her side of the story on any allegations that could have been levelled against her.
Matekane, she said, wanted her suspended pending investigations by the tribunal.
“The letter of representations was written, printed, and ready to be dispatched to His Majesty, and for some reason the Prime Minister recalled that I existed and that I may have qualms with the letter being transmitted to His Majesty.”
She said Matekane then wrote her a two-paragraph letter embedding the entire contents of his letter to the King and inviting her to explain why the letter could not be sent to the King.
On June 6, she said, she wrote back asking for further particulars and Matekane refused to provide her with the requested further particulars in his letter of June 17.
She said Matekane, instead, glossed her request as a delaying tactic.
Motinyane said the instruction by Justice Majara to withdraw the criminal charges against Metsing and Mochoboroane is unconstitutional, null and void as it “amounts to a threat to or actually violates and compromises the independence of and autonomy of the office of the DPP in its prosecutorial functions, powers and discretion”.
It also “amounts to political interference with the functions, powers and discretion of the office of the DPP”. She said the creation of the SAAG and the deployment of the DPP to that office is unconstitutional and amounts to the removal of the DPP from the Office of the DPP.
“This back-door removal is proscribed by section 141(4) of the Constitution.”
Motinyane said the move would amount to “buying me out of the office of the DPP”.
“It amounts to a threat to the DPP’s security of tenure and therefore the violation and undermining or compromising of the independence and autonomy of the DPP.”
She said the decision by the Prime Minister to advise the King to appoint an impeachment tribunal is unconstitutional and null and void.
Motinyane said a Prime Minister can only advise the King to remove a DPP for inability or misbehaviour that ought to be investigated first.
“The Prime Minister’s constitutional role under section 141(6) of the Constitution does not (extend) to advising the King to appoint the impeachment tribunal. The Prime Minister in advising His Majesty to appoint the impeachment tribunal as he did, went beyond his ordained powers and acted illegally.”
Matekane failed to appreciate his constitutional role and misconstrued his powers under section 141 of the Constitution, she said.
“Owing to the unconstitutionality of the impugned decisions and the unlawfulness and the invalidity of the impugned letter, it behove the respondents to consider their constitutional duty and not to proceed with any process concerning the same matters which are before the honorable court,” she said.
“I have a clear right not to be hauled before any tribunal constituted through unconstitutional means and consequently to protect my non-material rights and interests to reputation and human dignity. My removal from the office of DPP must be credible, lawful and legal and only the courts of law are the auditors of such legality,” she said.
“I have no other reasonable alternative and adequate legal redress than to seek the honorable court for the interdictory relief against the respondents.”
Caswell Tlali
