Thetsane blasts Thabane
DPP details reasons for dropping fired minister’s sedition charges Attacks Premier Thabane for attempting to remove him from office
DIRECTOR of Public Prosecutions ( DPP) Leaba Thetsane (King’s Counsel), says he refused to prosecute Selibe Mochoboroane on sedition charges because of various procedural irregularities in the manner the charges were brought against the fired Communications, Science and Technology minister.
In a scathing 13 page report, a copy of which is in the Lesotho Times’ possession, detailing his decision not to prosecute Mr Mochoboroane, Advocate Thetsane also accuses senior staff in his office of working behind his back in attempts to prosecute Mr Mochoboroane.
Using indirect language, Advocate Thetsane, virtually accuses some of his staffers of conniving with Mr Mochoboroane’s political adversaries as well as the Commissioner of Police’s office to target the Lesotho Congress for Democracy (LCD) politician and others while allegedly trashing prosecutorial etiquette.
The DPP singles out Advocate Kananelo Khoboko for some strong criticism. Advocate Khoboko, who is a crown prosecutor in charge of the southern region, was appointed acting DPP after Advocate Thetsane was sent on special leave on 5 June 2014 in the wake of a bid by Prime Minister Thomas Thabane to dismiss him from office ostensibly because he had passed the “mandatory retirement age of 55”.
Advocate Thetsane instituted legal action and the Appeal Court upheld his bid to remain in office. When he resumed duty on 7 November 2014, Mr Mochoboroane’s prosecution on sedition charges was already under way. This after the LCD deputy spokesman was accused of making statements “calculated to violate the dignity or injure the reputation of the Royal Family”.
The charges were raised after Mr Mochoboroane had accused Prime Minister Thabane –– during a phone-in radio programme –– of inducing King Letsie III to break the law over the dismissal of Lieutenant General Tlali Kamoli as Lesotho Defence Force commander on 28 August 2014.
Mr Mochoboroane was fired from his ministerial position by Dr Thabane on 16 October 2014 with the premier citing insubordination. He has since refused to vacate the post after questioning the decision’s legitimacy.
Upon his return to office, advocate Thetsane decided not to proceed with the prosecution of Mr Mochoboroane and withdrew the sedition on 18 November 2014. He said the prosecution of the LCD deputy spokesman had been a mistake.
The decision seems to have incensed Dr Thabane. Law, Constitutional Affairs and Human Rights Minister Haae Phoofolo, who is also a member of Dr Thabane’s All Basotho Convention (ABC) then wrote to Attorney-general (AG) Tšokolo Makhethe (King’s Counsel) on 24 November 2014 asking Advocate Thetsane to submit a written report “explaining why the DPP found it befitting and proper to cancel the directive authorising the appearance of Hon Mochoboroane in court which directive was given days before the DPP’S resumption of duty in his office”.
Advocate Phoofolo claimed it was his duty to report to Cabinet “on matters of a high profile nature such as the above” and wanted to submit the report to cabinet at its meeting of 25 November 2014.
Advocate Thetsane questioned the authority of the minister to ask the DPP to explain prosecutorial decisions saying such a directive was unlawful as only the DPP had the constitutional discretion to make such decisions. He, nevertheless, proceeded to respond and wrote a detailed 13 page report to the AG dated 3 December 2014 explaining his decision for declining to prosecute Mr Mochoboroane.
“I state at the very outset that in the ordinary course of events, the DPP exercising his constitutional mandate and or powers; is never called upon by the executive to explain the reasonability of his decision. On this aspect, the constitution speaks volumes (sic). As earlier discussed verbally, the furnishing of the report is purely informational for Cabinet to know; all the more-so because the Minister of the Crown is involved.
“… The most striking part of the summons is that CIR No. 874/09/14, the first figure depicting case number, the second depicting the month (September) and the third depicting the year, 2014, was only issued on 10/11/2014. Yet again strikingly, ex-facie (on the face of it) this document, (the) prosecutor issuing is not revealed as is the common practice or custom (sic).
“As the DPP and the custodian of all criminal matters in the Kingdom, I caused a memo to be written addressed to the Crown Attorney, Advocate Lehlanako Mofilikoane, as the overseer of the Maseru Prosecution Office.
“In the memo two issues emerged thus: (a) The incumbent (Mofilikoane) was not aware of the existence of the summons, and was not consulted before issuance of same. (b) As a consequence of this anomaly, the summons served on and charges preferred against Hon Mochoboroane were to be withdrawn forthwith on the day of the remand and or appearance of Hon Mochoboroane on 18 November 2014.”
Advocate Thetsane further states that pursuant to the memo, Advocate Mofilikoane instructed Senior Crown Counsel, Advocate Lesaoana Mohale to ascertain that the summons against Mochoboroane had in fact been procedurally issued through scrutinizing all records in all the relevant offices including the clerk of court’s office.
“It surfaced that no such summons and or docket existed….. “Yet again on the eve of the Hon Mochoboroane’s appearance before court (i.e.: 17/11/2014), the Criminal Registry staff in the office of DPP were ordered to ascertain the following:
Whether the docket involving Hon Mochoboroane had duly been registered in the Case Record Book as per established procedure.
If indeed it was so registered, when was such registration done?
Whether there was in existence a directive issued by any of the counsel in the office of DPP directing that Hon Mochoboroane should be charged.
“On inspection of the records, it emerged that on 12 November 2014 the case of Hon Mochoboroane was registered in the Case Record Book, marked “M1”. The most striking thing was that there was no RCI No. in the column provided in the Case Record Book. This was irregular because before any docket can be allocated to any counsel the following should be complied with willy-nilly (sic):
The investigating officer (police) is to register the docket with the Criminal Registry, assigning same L/DPP number.
The receiving officer in the Registry is to append his/her signature in the Police Movement Book evidencing that the docket has indeed been received. The matter gets registered in the Case Record Book.
The investigating officer leaves with the Police Movement Book.
The DPP (himself) peruses the matter and issues directives as the case may be. It is crystal clear that in the case of a high profile figure it is solely the duty of the DPP to determine how the matter is to be dealt with. The Criminal Registry staff would have been the ones drawing the attention of DPP to the presence of the docket, after same would have been registered. “in the instant case the Case Record Book appears to be riddled with disturbing irregularities. There is, for example, no information filled in the column “date dispatched” which information ought to have been filled when the criminal docket was dispatched pursuant to the directives given thereon.” given this state of affairs, Advocate Thetsane (KC) says he sought explanation from the criminal registry staff.
“The explanation proffered was to the following effect: That on 12 November 2014 Ms Khoboko came with a savingram already written and dated 5 November 2014 demanding that same be registered (sic). In response thereto, Ms Moteka in charge of the Criminal Registry advised that the savingram could not be assigned an L/DPP number without a docket.
Ms Khoboko persuaded her that she could not produce the docket as it formed part of the matters she was to hand over to the DPP. Only then did she assign the savingram an L/DPP number as revealed,” Advocate Thetsane stated.
“(The) million dollar question is: Did Ms Khoboko physically have the docket in her possession at the material time? It is just as well to note that on the outer cover of the docket, the Criminal Registry staff are to inscribe the assigned L/DPP number. Did this happen in this case?
The answer is absolutely “No”. “Indeed the report filed by Ms Moteka in the Criminal Registry speaks volumes regarding the presence or otherwise of the criminal docket in respect of Hon Mochoboroane’s matter.”
As a result of all these irregularities, Advocate Thetsane says on the day Mr Mochoboroane was due to appear in court, “I instructed both Advocate Mokuku responsible for the Maseru Prosecution Office to appear before court and cause the matter involving Hon Mochoboroane to be withdrawn formally”. “to my greatest surprise, I was informed that; also appearing for the crown in the same matter were Mr (Sipho) Mdhluli and Mr (Khotso) Nthontho purporting to have been appointed by my junior, Crown Attorney Khoboko.
“After some prolonged argument between the two opposing sides, but ‘representing’ the crown, Ms Khoboko’s appointees produced a letter (apparently reproduced from the DPP’S letters of appointment of counsel), purporting to retain Mr Nthontho as Mr Mdhluli’s junior counsel in the matter of Hon Mochoboroane.
“… Surprisingly and in stark contrast to the savingram dated 5 November 2014, in the letter under reference she advised ‘the matter is scheduled for remand at Magistrate’s Court on 18 November 2014’. Markedly this was as early as 3 November 2014 (sic).”
Advocate Thetsane then argues that the directive to charge Mr Mochoboroane could not “by any stretch of imagination have been given days before the DPP’S resumption of duty in his office”. “the attendant discrepancies starting with the records in the Criminal Registry in the office of the DPP ending with the records in the Maseru Prosecution Office are very telling,” he said.
According to Advocate Thetsane, the only reasonable inference to be drawn from this series of events was that everything was being done behind his back. He said Advocate Khoboko’s conduct left “much to be desired”. “i hasten to say that this is just but a repeat of what transpired in the matter involving the Hon Deputy Prime Minister (Mothetjoa Metsing) shortly before the writer hereof was forcefully sent on so-called “special leave” a novel nomenclature in the history of the Kingdom’s public service.
“Reverting to the subject matter, the only inference to be drawn is that there appear to be two Criminal Registries in the office of DPP existing side by side. The one such registry is run by the DPP himself through the agency of the staff in the Criminal Registry; and the other is run by Crown Attorney Khoboko acting in collusion with some officers from the Office of Commissioner of Police (COMPOL) to the writer hereof unknown (sic),” contended Advocate Thetsane.
“In the scenario, what sticks out like a sore thumb is that both Ms Khoboko and the officers are bent on engaging in flagrant violation of the established procedures in the submission of dockets from the office of COMPOL to the office of DPP for directives. I take serious exception to this conduct intended to achieve certain ‘obscure’ agendas.
“The matter does not end there, for (one) begins to seriously question the roles played by both Messrs. Mdhluli and Nthontho in the whole saga. You will recall that Mr Mdhluli was engaged to prosecute certain cases on the certain instructions of the powers that be.
“As for Mr Nthontho, I personally was responsible for his engagement as assisting Mr Mdhluli in those certain cases. One wonders whether the duo are still acting within the bounds of their mandate.
As at present there appears to be an unholy alliance between the duo and the office of COMPOL — in some instances (this may be one such) these counsel happen to lay their hands on criminal dockets involving certain high profile personalities, even before the DPP could, as the constitutional custodian of all criminal matters in the Kingdom.
“Perhaps one may observe that there is in existence also in the city of Maseru some pseudo office of the DPP parallel to the one constitutionally established in the Kingdom.”
Advocate Thetsane also lambasts Dr Thabane and Government Secretary Moahloli Mphaka for “unconstitutionally” seeking to oust him and instructing the police to eject him from his office on 25 August.
“Suffice it to say that this act was contemptuous of the Constitutional Court ruling, clearly demonstrating that both the first and second respondents (Prime Minister and Government Secretary, respectively) had no power (and this was conceded); to remove the DPP from office,” he said.
The only inference to be drawn is that there appear to be two Criminal Registries in the office of DPP existing side by side. The one such registry is run by the DPP himself through the agency of the staff in the Criminal Registry; and the other is run by Crown Attorney Khoboko acting in collusion with some officers from the Office of Commissioner of Police
LCD deputy spokesperson Selibe Mochoboroane
DPP Leaba Thetsane