A Lesotho Defence Force (LDF) employee has filed a constitutional lawsuit against the army for detaining her and claiming she violated employment policies by marrying a member of a famo gang.
In her application filed in the High Court last Friday through her lawyer, Advocate Fusi Sehapi, Lineo Kibinye, contests that there are no army regulations barring such unions.
Kibinye claims that she was put in detention for five days at Makoanyane Barracks in Maseru in September 2024, after which she was charged for cohabiting and/or marrying ‘a member of blanket organisations’, Moitheri Kubutu.
She maintains that her arrest, charges and trial were ultimately unjustified and contrary to the principal that an individual is free to marry a partner of their choice.
Kibinye wants the court to declare her arrest and detention “irregular and unlawful”, citing that the army violated her constitutional rights under Section 119.
She also asks the court to nullify any legal consequences resulting from her arrest and detention, and clear her name of any alleged violations of LDF policies.
Kibinye is also demanding that the Court Martial and army commander, Lt General Letsoela, provide the record of her summary trial and charging, within 14 days.
She further seeks a permanent halt to proceedings in the Court Martial, arguing that the charges against her were not based on existing laws and violated her constitutional right against being charged twice for the same offense.
In addition, she is asking for a declaratory judgment that the LDF’s actions of charging and attempting to punish her for marrying a partner of her choice violate her constitutional right to private and family life under Section 11.
The President of Court Martial, the Commander of Lesotho Defence Force (LDF) Lieutenant General Molahlehi Letsoela, the Minister of Local Government, Home Affairs and Police, Lebona Lephema, the Minister of Justice and Law, Richard Ramoeletsi, the National Security Services (NSS), the Commissioner of Police, Borotho Matsoso, Operation Fiela and or those acting under or through it and the Attorney General, Tlalehang Motsieloa are cited as respondents in the case.
Kibinye also seeks to overturn Lephema’s decision to declare some of the famo groups unlawful via the International Security (Declaration of Unlawful Organisation) No. 40 of 2024. She argues that the action violated the rule of audi alteram partem (hear the other side), freedom of association and acted outside of Lephema’s authority, infringing on the courts’ jurisdiction.
“I sue herein in my personal capacity and in representative capacity for the detained Moitheri Kubutu labelled by LDF and Operation Fiela as my illegitimate spouse.
“For lack of doubt, LDF failed to prove that I am married to Mr Kubutu and I have no legal duty to self-incriminate myself on this aspect and I shall leave this issue to LDFto prove it. Save to confess that I love Mr Kubutu,” Kibinye submitted.
Kibinye submitted that on September, 5 2024, while she was attending a women’s training session at Makoanyane Barracks with other female soldiers, she was arrested by the Special Operations Unit (SOU) and the LDF officers, who were in a white military van. The four officers, she said, were escorted by her Superior Lance Corporal Mokhahlane.
The group escorted her away from Woman’s Drill at Makoanyane Training Institute in Makoanyane Barracks to the house of Kubutu at Lithabaneng, where they were made to wait for him outside the yard.
Lance Corporal Mokhahlane’s affidavit corroborated Kibinye’s account of the events. He asserted to the accuracy of the allegations made related to him and requested the court’s permission to include relevant portions of the affidavit in his own capacity.
“I confirm all the allegations in so far as they relate to me. I crave leave of this Honourable Court to read the relevant parts of her affidavit as incorporated in my affidavit herein,” he wrote.
Kibinye noted that Kubutu and other arrested persons came in a Toyota quantum escorted by a van full of LDF members and Members of Criminal Investigation Department (CID) Police.
After they arrived, Kibinye said, they were all directed to enter into Kubutu’s rented house, where members of Operation Fiela – constituting of members of the police soldiers and others – illicitly searched into the privacy of Kubutu’s home despite their objection (Kibinye and Kubutu).
“We resisted the search on the basis that there was no warrant of search and seizure. We were informed that one police inspector Molise was a search warrant himself as he was the police of a Warrant Officer rank and/or above and that a warrant was therefore not required.
“An illicit search was then conducted into Mr Kubutu’s home. Two hats and one jacket unknown to me bearing Terene association colours were found in the hidden privacy of Mr Kubutu’s house,” Kibinye wrote.
She added: “I motivated a reasonable belief that it cannot be correct for members of the Operation Fiela to dig deep into the privacy of Mr Kubutu’s house, extract his hidden staffs and finally arrest me over the hats I never knew about, especially when Mr Kubutu himself made an involuntary admission that they belonged to him not me.
“I stay in the barracks and go to Mr Kubutu through visitation. It is the law of LDFthat all members of LDFstay in the barracks. When anything is illegal but not per ser dangerous, it cannot be hunted under the rocks and be brought to light like the Operation Fiela had done. Mr Kubutu was not wearing the items of property subject of my arrest.
“After the items of property were found, I was taken to LDF where I was put in dentition for five days, after which I was charged for cohabiting and/or marrying a member of blanket organisations. A summary trial was commenced against me. I pleaded not guilty, Kibinye submitted.
Kibinye voiced her dismay at the lack of evidence and procedural fairness during her trial, stating that witnesses could not prove her guilt, and their testimonies were speculative.
She added she was denied an opportunity to call witnesses in her defence.
Kibinye defended her decision to marry Kubutu, noting that she had sought and obtained approval from her direct supervisor, Sergeant Kelane before the marriage.
She contended that she had followed all the required procedures, including submitting a written application endorsed by her chief.
Given these factors, the LDF should be prevented from pursuing the charges against her, especially since they were unable to provide conclusive evidence linking her to the alleged crimes, Kibinye maintains.
Kubutu’s land lady, ‘Maitumeleng Hlaoli, also submitted an affidavit to support her case. She swore under the oath that her statements were true, based on her personal knowledge and recollection. “I confirm that on or around the 5th September, 2024, applicant arrived at my home in Lithabaneng in a white military van which parked for sometime outside my yard. Then later a Quantum and another van arrived escorting it full of armed forces. Then Mr Kubutu, being my tenant, came out of that quantum under heavy escort,” Hlaoli submitted.
