Lesotho politician loses his anti-corruption law challenge, but what’s next?

LESOTHO’S dogged determination to root out corruption has impressed many people. It was shown a decade ago with a series of successful bribery charges against highprofile international companies working on the gigantic Katse Dam project.

But are tough anti-corruption laws dating from that period constitutional? This week they came under the spotlight after prominent politician Mothejoa Metsing challenged their validity in the high court.

In the wake of Lesotho’s election last month, the foreign editor for Independent Newspapers, Peter Fabricius, described Metsing as a “notoriously unfaithful coalition partner”.

That’s putting things mildly. Metsing, who heads the Lesotho Congress for Democracy, has played a crucial role in recent attempts to form a coalition government.

Until 2012 he partnered prime minister Pakalitha Mosisili in a coalition govern- ment. Then Metsing initiated what turns out to have been a temporary separation rather than a divorce. He and his party walked out of the common home and shacked up with Tom Thabane’s All Basotho Convention, thus allowing Thabane to form a coalition.

It didn’t last long. Late last year Metsing dropped Thabane, the resulting crisis saved from catastrophe only by the efforts of South Africa’s deputy president Cyril Ramaphosa. Now, following new elections, Metsing is back with Mosisili, though noone imagines this is anything other than a temporary home.

As he forms his new government, Mosisili will surely be studying a new high court decision following a challenge brought by Metsing against the directorate of corruption and economic offences, the minister of justice, the attorney general and some banks operating in Lesotho.

The court heard that towards the end of 2013 the directorate received information about large-scale bribery and corruption.

It concerned construction company Big Bravo which, informants claimed, was illegally awarded a road-building tender. According to these allegations Metsing, minister of local government and chieftainship affairs at the time as well as deputy prime minister, received bribes from the company.

The directorate launched a “discreet and confidential investigation” which showed Metsing had appointed the deputy principal secretary as his delegate on the adjudication panel and that the initial evaluation report had been “revised to favour the company”.

The directorate then contacted Standard, Nedbank and First National banks, explaining that they were conducting an official investigation under the prevention of corruption laws and asking for the statements of Metsing’s accounts starting on January 2013.

Standard’s records showed “various unattributed cash deposits” into Metsing’s account totalling R328 000. Nedbank’s statements reflected “numerous unattributed cash deposits” with a total of R118 000. Metsing’s FNB platinum account showed similar deposits of virtually R525 000.

Last July, the directorate wrote to Metsing that it was conducting an investigation under the corruption laws involving the ministry of local government and senior government officials in Lesotho and asked Metsing, in terms of these laws, to explain the origin of the funds they had highlighted.

Metsing responded with court action questioning whether the anti-corruption legislation was constitutional.

For example, he claimed that when the law empowered the directorate to approach his banks for information, without first requiring that the banks obtain his consent to hand over the information, it violated his constitutional right to privacy.

The court, consisting of three seconded South African high court judges, has now held the legislation constitutionally sound. Though the banks’ notices were not issued “with the necessary attention to detail” – for example, in some places they quoted the wrong sections of the law – they were still valid.

If the legislation infringed his right to privacy this was justified by the legitimate government purpose of investigating and prosecuting corruption.

The court said that even if the bank statements were unlawfully obtained, either because the wrong sections were quoted or Metsing’s privacy rights were violated, the statements could still be admissible evidence in any future case.

Clearly Metsing has convincingly lost this round – but what happens next?

Right at the start of its judgment the court stressed the dispute was about the constitutional rights of the parties: the right to a fair trial, the right to silence and the right to privacy. It was not about the facts involved in the investigation or whether Metsing committed corrupt acts.

Those issues had to wait for the outcome of the preliminary round before they could be followed up. Now that’s been resolved, Metsing will have to reply to the directorate’s questions about all those cash deposits.

His answers, and the directorate’s resulting decision on whether to prosecute, could have far-reaching consequences for politics in Lesotho.