Selective justice is injustice

Selective justice is injustice

WE have seen in recent times several incidents that would seem to suggest there is rampant selective application of the law in Lesotho. The result has been injustice for certain members of our society which promotes political and social instability. I would like to argue that as long as justice is used as a passport to achieving political ends, injustice will continue unabated.

The general problem in Lesotho is that too often justice is not delivered to victims and even when there are symbolic attempts to deliver justice, it is done selectively, which itself is an injustice.

Opening the door for the politicisation of the justice system creates a loophole for partisan or selective justice to officially take course. For example, to go after political foes while ignoring alleged criminal acts or atrocities of friends, allies and that of partners in crime, will only foster a sense of injustice for the aggrieved.

I am not a lawyer and I write this article as an interested Mosotho who is seeking and longing for unbiased justice. I will use several court cases to highlight the selective justice I see in Lesotho.

The first two cases have similar facts. These are the bail applications of Lieutenant General Tlali Kamoli and that of ‘Maesaiah Thabane. I admit that bail is a constitutional right. But I am also shocked at the way the courts of law administer justice lately. We must remember how the Director of Public Prosecutions (DPP) Advocate Hlalefang Motinyane passionately opposed the bail application of the retired army commander Lieutenant General Kamoli.

Kamoli was denied bail based on her argument that considering the serious charges he was faced with Kamoli was likely to abscond and not stand trial.
On the other hand, Motinyane did not oppose the bail application of ‘Maesaiah Thabane when it was before Justice ‘Masefero Mahase. But later she wanted to oppose it after it was returned back to the High Court by the Court of Appeal.

On Monday Justice Nomncongo granted bail to ‘Maesaiah Thabane, the wife of the former Prime Minister of Lesotho, Tom Thabane, who is a suspect in the murder of Lipolelo Thabane. In my opinion, ‘Maesaiah faces serious charges but I am appalled that nobody thinks she is likely to abscond and not stand trial. Selective justice is injustice.

We must also not forget that failure by elected officers to abide by the rule of law is the height of indiscipline and misconduct.
On Sunday, the Minister of Law and Justice, Prof. Nqosa Mahao went to a political rally where more than 50 people had gathered in violation of Covid-19 restrictions. This happened after Alliance of Democrats (AD) food distribution campaign was rudely interrupted by the police.

But what is interesting is that the police allowed the All Basotho Convention (ABC) rally held at the Stadium Area, Maseru High School, to proceed. What does this communicate to the masses of our people? Could it be that the ABC and its leaders are above the law? It is definitely selective justice.

The other important case is the case of Metsing and Mochoboroane where they are being charged with treason alongside Lieutenant General Tlali Kamoli and an army officer, Captain Litekanyo Nyakane. This case has very vital historical background we should never forget.
On August 22, 2018 the then Prime Minister of Lesotho, Thomas Thabane wrote a letter to the SADC Facilitator to Lesotho and President of South Africa Cyril Ramaphosa. The Thabane administration made concessions regarding the return of Mothetjoa Metsing from exile.

“That immediately upon his arrival in Lesotho, the Government of Lesotho undertakes to withdraw the extradition application for his return filed with the Courts of Law in the Republic of South Africa. Alternatively, Government will withdraw extradition application in question upon receiving a written commitment from Honourable Metsing that he will return to Lesotho on a date that he will specify in such an undertaking,” remarked Thabane in his letter.

Before his return SADC through the facilitation of Justice Dikgang Moseneke convened a meeting between the government of Lesotho and the opposition that was led by the then leader of opposition Mathibeli Mokhothu. The outcome of that meeting was an agreement signed by the then Deputy Prime Minister Monyane Moleleki on behalf of government and Mathibeli Mokhothu on behalf of opposition.

Clause 10 of that agreement states that “Mr Metsing and similarly placed persons in exile will not be subjected to any pending criminal proceedings during the dialogue and reforms process”.

The SADC agreement paved the way for Metsing’s return from self-imposed exile.
Thabo Khetheng however petitioned the Constitutional Court to declare Clause 10 of the SADC agreement unconstitutional and it was regarded as a self-serving agreement between politicians that could not outstrip the constitution.

The above judgement came after the courts of law decided on two cases setting a precedent that the government of Lesotho is bound by SADC recommendations. On November 3, 2017 Justice Peete issued a final order that decided two very important issues that “the contemplated Court Martial trial of the applicant in case number CM/01/2015 is discontinued and permanently stayed” and lastly “the government of Lesotho is declared bound by the recommendations of SADC Commission of Inquiry whose report had been accepted by the sitting Prime Minister”

The late Lieutenant-Colonel Tefo Hashatsi also lost an appeal in the Court of Appeal to have the SADC Commission of Inquiry into Lesotho’s instability declared illegal.

The above cases give a legitimate reason to believe or a pretext for Metsing and Mochoboroane to sue that they are being selectively targeted for purely political reasons.
The prosecution of Metsing, Mochoboroane, Lieutenant General Tlali Kamoli and an army officer, Captain Litekanyo Nyakane alone cannot ensure justice. It behooves the legal and judicial institutions to bring to book all actors, including other self-confessed coup d’état plotters who according to the South African Hawks were training mercenaries in South Africa to attack the Lesotho government.

The government must end the culture of both impunity and selective justice and try to gradually restore the public’s trust in the rule of law and justice.
I expect all judges to have certain baseline characteristics, including competence, independence, and, of particular significance to this article, impartiality. A judge lacking impartiality taints case outcomes and makes a mockery of so-called justice.

The concept of fairness means the ability to judge without reference to one’s feelings or interests. In order to prevent selective justice and so as to give political and legal legitimacy to the arrests and charges currently taking place, the Lesotho government has the legal duty and moral obligation to bring all government officials and bureaucrats regardless of their political affiliations, suspected of crimes to face justice.

Ramahooana matlosa

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