Big blow for Thabane

Big blow for Thabane

MASERU – A High Court judge on Tuesday delivered a massive blow against Prime Minister Thomas Thabane when he nullified the premier’s attempt to suspend Police Commissioner Holomo Molibeli. Justice Molefi Makara said Thabane had not acted within the parameters of the law when he tried to push out Commissioner Molibeli last December.

The judge said Thabane’s decision to suspend Commissioner Molibeli was irrational and was done at the wrong time.
The ruling means Commissioner Molibeli remains the substantive police boss.
The judge granted Commissioner Molibeli’s application to set aside the premier’s decision to suspend him and replace him with Assistant Commissioner of Police (ACP) Janki Hlaahla.

Justice Makara said he was not surprised that the Attorney General (AG) or his office were not present before the court as they never intended to defend the matter from the beginning. “It has been a trend that he never wanted to show up before court on this case,” Justice Makara said.
“The AG never showed his intentions to prosecute the case,” he said.
The judge said the office of the AG had to be an example to others on how cases are handled.

Justice Makara said even though Thabane had argued through his lawyers that he did not go to the King to advise him to appoint another commissioner, Molibeli did the right thing to rush to the courts of law for protection immediately after hearing rumours that his position was at stake.
According to Commissioner Molibeli’s application, Thabane’s move was meant to stop the investigations into his estranged wife Lipolelo Thabane’s murder case.
“Thabane’s plan of having me indefinitely on forced leave and suspending (me) is the last string in the bow and (arrow) in order to immunise himself from criminal investigations and prosecution, thus thwarting the rule of law, equality before the law, due process and justice,” Commissioner Molibeli argued.

“My removal from office of the Commissioner of Police and the appointment of a willing and subservient candidate who will protect his interests guarantee the first respondent (Thabane) an immunisation tool against the investigation, prosecution and justice,” he said.
Commissioner Molibeli said early in January he received a credible intelligence report by a security agent that on January 9 Thabane was going to the King to retire him with immediate effect.

His application also states that it was illegal for Thabane to constrain himself on the Constitution as the basis for removing Commissioner Molibeli from superintending the police. It said Thabane has no authority under the law to act on the basis of section 91 (3) of the Constitution in the circumstances of the present case, dealing with the retirement of the Commissioner of Police under the Police Act 1998.
And the Constitution under section 147 does not itself deal with the removal and/or retirement of the Commissioner of Police, such matter being prescribed and required under Police Act 1998.

The application said in terms of the Constitution, the Prime Minister is only entitled to act and the act would be deemed to be that of the King, only in circumstances where he or the King failed to perform an act that is required by the Constitution.
Retiring or requiring the Commissioner of Police to retire is not required by the Constitution, but by the Police Act 1938, the court found.
To act on the basis of this section without this important conditional precedent, would result in Thabane “committing a serious jurisdictional error or mistake of law on his part”.
Thabane clearly misconstrued his powers under the Constitution, the court found.

Itumeleng Khoete

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