Thet­sane blasts Tha­bane

DPP de­tails rea­sons for drop­ping fired min­is­ter’s sedi­tion charges At­tacks Pre­mier Tha­bane for at­tempt­ing to re­move him from of­fice

Lesotho Times - - Front Page - Lekhetho Nt­sukun­yane

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

Newspapers in English

Newspapers from Lesotho

© PressReader. All rights reserved.