The Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane has fired a legal salvo at the government, citing that its decision to redeploy as Special Advisor to the office of the Attorney General (SAAG) is unconstitutional.
Adv Motinyane’s Constitutional Court case instituted on July 1, 2024 pits the country’s top prosecutor against prime minister Sam Matekane, with implications that could rattle Lesotho’s political system.
Respondents in the case are Matekane, minister of law and justice Richard Ramoeletsi, Attorney General Advocate Rapelang Motsieloa, His Majesty King Letsie III, and Chief Justice Sakoane Sakoane, respectively.
The government’s decision to redeploy Adv Motinyane was communicated to her in a meeting with Ramoeletsi and Adv Motsieloa on February, 13 2024.
The sudden government move comes after Adv Motinyane’s refusal to withdraw charges against former deputy prime minister and now Matekane’s political advisor, Mothetjoa Metsing and the current minister of health, Selibe Mochoboroane.
The instructions to withdraw the charges were given to Motinyane by the current deputy prime minister Nthomeng Majara in her capacity as the then minister of law, and justice in September 2023. This after she (Motinyane) preferred charges against the then Lesotho Defence Force Commander, Lieutenant General Tlali Kamoli others in 2018, and later joining Metsing and Mochoboroane in the proceedings as 5th and 6th accused.
Kamoli and the others are facing charges related to his successor, Lieutenant General Maaparankoe Mahao’s murder, and bombings targeting then prime minister Thom Thabane’s fiancée, Liabiloe Ramoholi, in 2014, among others.
“I must disclose to the Honourable Court that in September 2023, I was called to come to the minister of law and justice, Majara’s office and upon after discussion of several matters concerning the ministry, DPM Majara acting in her capacity as the minister of law and justice, instructed me to withdraw the charges against Mr Metsing and minister Mochoboroane.
“She (DPM) requested me to call the duo – Mr Metsing and minister Mochoboroane and talk to them about the matter of withdrawal of charges. I refused to follow the instructions and requests aforesaid as they amounted to unlawful and unconstitutional interference with the prosecutorial independence of the DPP,” Adv Motinyane submitted.
Having refused the “unconstitutional and unlawful” instructions and requests from Majara, Motinyane said the state machinery scaled up by creating the Office of the Special Advisor to the Attorney General (SAAG) with the intention to remove her from the DPP’s office and to redeploy or move her the SAAG.
Adv Motinyane added that the refusal and impeachment route became obvious when Ramoeletsi – cited as the second respondent – resumed a ministerial position and Majara become the deputy prime minister.
“I must indicate that 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 the DPP until I attain the prescribed age (60 years).
“However, on 13th February 2024 and in a meeting with minister Ramoeletsi and the Attorney General (3rd Respondent), the Attorney General offered to my utter dismay, a redeployment of me and declared that he (AG) has created the office of SAAG for me in the office of the Attorney General, that the funds of the said new office had already been sourced.
“…That the employment terms of the new office were drafted by him and the deputy Attorney General. I was shocked to the marrow and obviously embarrassed at the turn of events. After some discussion and at the end of the meeting, 2nd Respondent (Ramoeletsi) then requested me to take some time to consider the proposal made by the Attorney General.
“Although neither the Attorney General nor minister Ramoeletsi advanced reasons for the proposal, 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,” Adv Motinyane said in her court papers.
She further submitted that on the same day of the meeting, Motsieloa called her back to his office and explained to her that he and Ramoeletsi had tendered the proposal to redeploy her so as to avoid her being dismissed from the office of the DPP.
She added that Adv Motsieloa told her that they were acting on instructions to make the said proposal of the redeployment.
“According to him (Motsieloa), the deployment to SAAG was considered by them, (the Attorney General and minister and their unnamed principal), as “the soft landing” they could find for me and that this matter was the subject of investigation since September 2023. He urged me to take an immediate leave of absence until deployment.
“It was clear from my conversation with the Attorney General that from the day I refused DPM Majara’s instructions, and requests aforesaid, the state machinery embarked on new tack to investigate on how I may be removed from office: by dismissal or redeployment to pave the way for the grand object of the withdrawal of charges.
“Unwillingly but at the same time not adopting an antagonistic posture as I did to the instruction and request of DPM Majara, I requested the duo some time to consider what was being requested of me and to analyse the impetus behind the proposal as well as the implications on my office and person,” Adv Motinyane said.
She indicated that on February 27, 2024, she met Ramoeletsi in his office where he expressed upon her to sign the letter dated February 26, 2024, indicating that he did not like to be like other politicians or to move ahead with the impeachment against her as he needed her as part of his team. But she told Ramoeletsi that she was still considering the matter and would revert to him on her decision.
Adv Motinyane further noted that on February 28, 2024, she responded to set the record of the conversation and communication and refused to sign for anything as requested by Ramoeletsi, raising several issues including constitutional and legal grounds.
“On 26th March 2024, minister Ramoeletsi responded to my letter dated the 27th confirming the meeting of the 13th February 2024 in the Attorney General’s office and also trying to explain away that his intention was to solicit my voluntary consent to vacate office of the DPP and assume the SAAG.
“The Honourable Court will readily discern that from the meeting of the 13th February 2024 until now, there has never been disclosed to me why there was a need for me to move out of the office of the DPP and be deployed somewhere,” she said.
Adv Motinyane was appointed on acting terms as the DPP on October, 10 2017 and made permanent and on pensionable terms on February 15, 2019.
In her founding affidavit, she observed: “I have substantial legal interest in not only protecting the independence and autonomy of the office of the DPP and ensuring that I am not removed from the office of the PP through unlawful and unconstitutional manner, but also that the unconstitutional exercise of the public power is not immunized from constitutional review and auditing by the Honourable Court.”
In her prayers through her legal representative, Advocate Tekane Maqakachane, Adv Motinyane wants the court to declare that the instruction to her to withdraw the criminal charges against Metsing and Mochoboroane in CRI/T/0001/2018 is unconstitutional, null and void.
Adv Motinyane also wants the court to declare that the creation of the position of Special Advisor to the Attorney General with the purpose of redeploying her to that office is unconstitutional, null and void.
She further wants the court to declare that Matekane’s decision to request His Majesty King to engage the Public Service Commission to suspend her pending the finalisation of the impeachment tribunal is unconstitutional, null and void.
She also asks the court to interdict and restrain the respondents from taking any further process, steps and or decisions regarding the impeachment process until the court has finally determined the matter.
The matter is yet to be served on the Respondents and will be set down on the day to be designated by Registry by placing the matter before the presiding judge in terms of the High Court Civil Litigation Rules of 2024.
According to Advocate Maqakachane, the Attorney General has filed a notice of intention to oppose the application but has not yet responded.
