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From initiation school to the pulpit

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MASERU – WHEN the subject of a general amnesty is brought up during our interview, Dickson Monaheng, speaks passionately about the need for “forgiveness”. Monaheng, who served as mayor of Maseru between 1993 and 1994, says while he agrees in principle with the concept of a general amnesty, “people must earn that forgiveness”. “Forgiveness must not be thrown on you like a blanket,” he says. He adds that “forgiveness is no justice if it leaves the element of justice.” He believes if there is to be any true healing, those accused of human rights violations must own up to their deeds. Only then can Lesotho deal with the demons of the past and move the country forward, he argues. “The victims will experience a degree of healing if the culprits are brought to a point of confession and repentance publicly,” he says. Monaheng spoke amid serious overtures by the government led by Prime Minister Pakalitha Mosisili to declare a general amnesty under the Amnesty Bill 2016. The Bill seeks to grant a blanket amnesty for offences committed by soldiers between January 2007 and December 2015. But much more worrying for the opposition and the international community is the fact that the amnesty will extend to soldiers who were involved in an operation that killed former Lesotho army commander Maaparankoe Mahao in June 2015.

A SADC commission of inquiry has already recommended that all soldiers who were involved in the killing of Mahao must face justice. The United States and the European Union have both rejected the Amnesty Bill claiming it promotes impunity. Monaheng says it would be tragic if Basotho were to merely turn a “blind eye to the injustices of the past as if those things did not happen”.  He says a competent body, preferably made up of judges from outside Lesotho, must be constituted to deal with the issues of a general amnesty. What is striking is the fact that the subject of repentance and forgiveness keep on popping up during the two-hour interview. That came as a no surprise because Monaheng is a deeply devout man.  In fact, he is a pastor and founder of ZOE Bible Church, an indigenous Pentecostal religious group whose core belief focuses on the attainment of eternal life in the hereafter. He says it would appear Basotho have failed to deal with historical issues that have promoted hatred and divisions over the last 50 years. “Our politics have been a great source of hatred and divisions. That has to be rescued. Our politics must change,” he says. Monaheng argues that since independence in 1966, “our politics were marked by antagonism”. “Children were taught to hate from a very young age,” he says.

He says even when they were young, boys would take their cattle to graze in the unharvested fields that belonged to BNP (Basotho National Party) people.
The parents would conveniently turn a blind eye. We have not moved an inch from that era of antagonism and hatred, he says. “There is a lot of polarization,” he says. Monaheng says Lesotho needs to set up a competent body to deal with issue of amnesty in a “non-threatening manner”. “This issue must be handled with great sensitivity and wisdom without threatening anybody,” he says. He says the issue of the unfortunate killing of Mahao in June 2015 must be “handled amicably”. Monaheng suggests the government should seriously explore the issue of monetary compensation for the Mahao family for their loss.
But how do we take Lesotho forward given the toxic relations between the political leadership across parties?

For Monaheng, the key to unlocking the political logjam lies in a drastic ideological repentance, a form of political re-education. The idea is to teach “political tolerance”, he says.
Our political leadership must be advised and encouraged to see all Basotho as one people, he argues. He says Mosisili’s talk that the two main political formations in Lesotho, the Congress and Nationalists, are like oil and water and therefore cannot work together will only serve to drive a wedge between us. “The solution lies in working together. We need to redeem the past by forgiving each other and committing to our ancestral roots.  “We are a country founded on unity, patriotism and tolerance as taught by our founder Moshoeshoe I,” he says. Monaheng, who says he was a card-carrying member of the Democratic Congress (DC) until the split late last year, says while Mosisili has proven over the years to be a political chess player, he is of the opinion that he “handled the split with Moleleki (former deputy DC leader Monyane) emotionally”.

“You cannot say you are putting the leadership out of functional politics for six years. You are actually killing them politically. Mosisili forced them to form a party,” he says.
“The DC leader failed in his leadership of the congress movement. There have been so many splits under his leadership.” Monaheng says his sympathies now lay with Moleleki and his Alliance of Democrats (AD) adding he finds Moleleki to be a man of “tolerance who promotes forgiveness and patriotism”. While he is happy to have found God late in life, Monaheng says that has not always been the case.  That is precisely because his father was an unapologetic traditionalist and was vehemently opposed to the Church and what it stood for. In fact, his father ran a traditional circumcision school in Qalo in Butha-Buthe, setting himself on a collision course with the Church which considered such practices “satanic”. As a result, the Church considered his father “the source of darkness in Qalo”. “Circumcision schools were considered taboo by the Church. If any children were enrolled at the circumcision schools, they were promptly expelled from school and their parents excommunicated from Church,” he says.

Monaheng says this issue brought a lot of friction and antagonism between his family and the Church. “I knew they were them and we were us. That distinction was very clear to us, we were the circumcision guys,” he says, with a smile. He describes his father as a “no nonsense man” who took on the Church on his own terms. Yet despite such a very traditionalist background, Monaheng had a deep longing for spiritual fulfilment. But it was only after his father had died in 1978 that he was he able to seek and find God, whom he calls “the God of the Book”. “I needed to know whether there was a personal God who could relate to man, who could see, hear and have compassion. I wanted to compare that with our ancestral spirits,” he says. “Eventually I challenged this God and told him that if you are real and have a personage please reveal yourself to me; make me know you.” That was how Monaheng came into contact with his God.

In 1979, Monaheng says he finally became a Christian although he was not affiliated with any organised religious group. But like most Basotho his age, Monaheng took the long trip to the gold mines in Welkom, South Africa, toiling there as a migrant worker. That unforgettable experience made him come face-to-face with the vagaries of life in the mines in South Africa.“That was a very hard life,” he says.“I got married to my wife while I was working there but I could not stay with her. Women could not even enter the premises. It was a place for men. Even the cooks were men.”The mining environment dehumanised Basotho mineworkers and brought a lot of social ills like prostitution and the gang culture among Basotho.
It also had a devastating impact on Lesotho’s economy.

“That killed our economy,” he says.  “Prior to mining Basotho were self-sufficient. When men go and spend years in the mines children grow up without a father figure. The hard work at home is left for the women.” Monaheng says he quickly realized mining work was never meant for him and immediately began making plans to return home to Lesotho.
But to satisfy his religious thirst, Monaheng says he decided to go to Bible school after a bruising discussion with Jehovah’s Witnesses that left him convinced he needed to beef up his religious education. So in 1980, Monaheng enrolled for a four-year theological course at the Word of Faith Bible College in Welkom. “The God of the Book had made an indelible mark on me to the extent that I had Bible discussions with the miners that made me join the Bible school.” Besides being a pastor Monaheng runs two schools, ZOE Praise Primary School in Ha-Seoli and another primary school in Thaba-Tseka. He also runs ZOE Secondary School in Lithabaneng in Maseru. “We seek to promote a good environment that is based on a commitment to Christian values and good ethics.” Monaheng is married to M’e Mathabo Monaheng and the couple has three children.

Abel Chapatarongo

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Blow for former DCEO boss

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AN attempt by Advocate Mahlomola Manyokole to block his prosecution for fraud and money laundering failed last Friday after the Court of Appeal dismissed his petition.

Advocate Manyokole and one of his seven co-accused, Relebohile Lesholu, approached the Court of Appeal after High Court judge Justice ’Maliepollo Makhetha refused to permanently stay their prosecution last year.

Manyokole was first suspended and later fired as the director-general of the Directorate on Corruption and Economic Offences (DCEO) before he was dragged to court on criminal charges in 2021.

Manyokole and Lesholu were seeking a permanent stay of prosecution after the crown took 18 months without prosecuting them from the date of their first appearance in the Magistrate’s Court.

They were also complaining that the state charged them before investigations were completed, citing challenges with respect to appointment of prosecutors for the trial.

They applied for a permanent stay of prosecution before Justice Makhetha on grounds that they were denied the right to a fair trial within a reasonable time as the state had failed to furnish them with indictment, criminal docket and witness statements.

The required documents were however furnished before the stay application was heard, leading to Justice Makhetha dismissing the application on grounds that the matter had become moot.

The President of the Court of Appeal, Justice Kananelo Mosito, sitting with Chief Justice Sakoane Sakoane and Justice Moses Chinhengo, found that the period of delay was not egregious and caused no irreparable trial-related prejudice.

The Court of Appeal said the criticism that Justice Makhetha erred in deciding that the matter of the issue of supply of the documents was moot by the time the stay application was heard or finally decided cannot be faulted.

“The State explained in sufficient detail why the documents were not furnished by the time of the stay applications,” Justice Mosito said.

“That explanation is not fanciful but reflects the reality and challenges faced by small jurisdictions such as ours in dealing with many complex and serious offences against accused persons in one trial,” he said.

“There was no refusal by the state to furnish the documents.”

The court found that the state faced real challenges with regard to completion of investigations, appointment of prosecutors and associated issues including the need for thorough preparations for the trial by the appointed prosecutors.

The state, the court said, was edging towards the holding of the Pre-Trial Planning Session (PTPS), scheduled for December 12, 2022, when they lodged the stay applications in the forlorn hope that a permanent stay would be granted.

The court determined whether the delay of 18 months was so inordinate or over-lengthy as to warrant the drastic order of a permanent stay of prosecution.

It found that it cannot be said that the delay in bringing the accused to trial in this case is egregious, nor can it be said that there already had been trial-related prejudice suffered by the appellants.

“A permanent stay of prosecution is a drastic and exceptional remedy entirely unsuitable to be granted at this nascent stage of the proceedings,” Justice Mosito said.

Justice Mosito said had the appellants “not truncated the process and had allowed PTPS scheduled on 12 December 2022 to go ahead, the trial may have been completed by now, 15 months later”.

He said accused people and their lawyers must be discouraged from pursuing unmeritorious applications for permanent stay without proper regard to the complexity of charges they are facing and the availability of institutional resources.

“Although the appellants have not been successful, costs may not be visited upon them, this being essentially a criminal matter,” he said.

The court also found that the appellants themselves contributed to the delay of their prosecution.

One of the state prosecutors, ’Mamongonyo Baasi, explained the causes of the delay in submitting the docket.

She said the 24 charges “are sophisticated economic offences” committed by senior officials of the DCEO and require a high degree of attention from any would-be prosecutor.

She said the forensic report that the state largely relies on was only completed on June 20, 2022.

The lawyer initially assigned to prosecute the case withdrew from the matter and new prosecutors had to be appointed and they needed time to familiarise themselves with the voluminous documents involved.

The prosecutors had to consult with necessary witnesses including forensic experts from PriceWaterhouse & Coopers who are resident in South Africa.

Baasi denied that the charges are trumped up and asserted in strong terms that there is a prima facie case against all accused persons as disclosed in the docket.

She said the accused persons demanded the documents verbally and in writing before the investigations were completed.

During the period between May 2021 and October 2022, there had been a change of prosecutors.

Responding more directly to Manyokole’s affidavit, Baasi said the prejudice he suffered, if any, did “not outweigh that which the State would suffer if a permanent stay was granted”.

“The state undoubtedly suffers prejudice if such heinous crimes are not prosecuted in circumstances where (Manyokole) was operating within the purview of a law enforcement agency and arbitrarily used institutional power of the DCEO for self-aggrandisement,” she said.

Staff Reporter

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Lawyer wins praises for defending legal profession

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THE Court of Appeal has praised Advocate Rethabile Setlojoane for resisting the police’s attempt to force him to violate the principle of attorney-client privilege during investigations.

The Court President, Justice Kananelo Mosito, flanked by four other Justices of Appeal, last Friday ruled that it is crucial to uphold the fundamental legal principle of attorney-client privilege.

The court said Advocate Setlojoane had sought to vindicate not only his own rights but also the rights and ethical obligations of the legal profession as a whole.

The court also criticised the High Court for declining jurisdiction when Advocate Setlojoane approached it last year complaining about the police’s conduct.

Advocate Setlojoane is representing Lehlohonolo Selate who is currently in prison facing a raft of charges.

Selate is suspected of defrauding the government of M50 million between October 2020 and September 2021.

A company called Sunny Penny (Pty) Ltd, in which Selate has some interest in, is also suspected of being involved in the fraud.

The police investigators summoned Advocate Setlojoane for questioning following the payment from Sunny Penny (Pty) Ltd.

During the questioning, the police directed him to surrender all files relating to his client and money paid as fees by Sunny Penny (Pty) Ltd.

Advocate Setlojoane refused to do so, citing the principle of lawyer-client privilege.

He was taken to the Subordinate Court in an attempt to have him joined as an accused in the case against Selate.

However, his lawyer objected to this joinder by invoking provisions of Section 128(1) of the Constitution of Lesotho, which requires that constitutional questions be referred to the High Court.

The magistrate accepted the objection and did not join Advocate Setlojoane as an accused.

Consequently, he instituted an application in the High Court and on June 12 last year a coram of three judges made up of Justices Moroke Mokhesi, Polo Banyane and, ’Maliepollo Makhetha heard the application.

On September 14, 2023, the High Court delivered its judgment and dismissed the application, declining to exercise its constitutional jurisdiction over the violation of the lawyer-client privilege and the right to legal representation.

The High Court based its reasons on the availability of other adequate means of redress.

The court said the lawyer-client privilege is a fundamental principle that is essential for effective legal representation and protecting client’s rights.

It also said by declining jurisdiction, the High Court missed an opportunity to guide the scope and application of the lawyer-client privilege within the Lesotho legal system.

The court said, however, it is important to note that section 22 of the Constitution allows the High Court to decline to exercise its powers if it is satisfied that adequate means of redress are or have been available under other laws.

The court should exercise its discretion to decline jurisdiction only in “very exceptional circumstances”.

The Court of Appeal highlighted “the right of the client to be free from disclosure of confidential communications with his or her lawyer, subject only to the limited exceptions recognised by the common law”.

The court emphasised that the lawyer-client privilege is not merely a rule of evidence but a fundamental principle that ensures the effective exercise of the right to legal representation and the fairness of criminal proceedings.

It also said the rationale of the privilege is not the protection of the individual client, but the upholding of the administration of justice itself, which depends on the free and full communication between clients and their legal advisers.

It said an accused person could challenge the admissibility of evidence obtained through the unauthorised recording of conversations with their legal counsel, as such recordings would violate the lawyer-client privilege and undermine the right to effective legal representation.

The court said while the Money Laundering and Proceeds of Crime Act 2008 does not directly mandate a legal representative or adviser to hand over client funds paid as fees, it imposes obligations to report suspicious transactions.

If subsequent investigations and legal processes determine that these funds are proceeds of crime, they may be subject to confiscation or forfeiture.

Therefore, the legal representative’s duty primarily involves reporting rather than direct transfer of funds to the authorities, unless directed by a court order following due legal processes.

The court said while the police do not have the explicit authority to directly demand the handing over of client funds paid as fees to legal advisers merely on suspicion, they are permitted to seize such funds if there is a reasonable suspicion they are proceeds of crime.

This would typically follow from a structured legal process including reporting, investigation, and potentially judicial proceedings where evidence supports the suspicion of money laundering or related criminal activities.

It said while it is imperative to dismantle the barriers that secrecy laws may create in the fight against financial crimes, it is equally crucial to uphold the fundamental legal principle of attorney-client privilege.

The preservation of this privilege ensures that while legal practitioners may be required to disclose certain information, the core elements of their advisory role remain protected, which is vital for maintaining trust between clients and their lawyers.

The attorney-client privilege is a fundamental principle that underpins the right to legal representation and the fairness of criminal proceedings, the court said.

It said the police investigators had no legal basis for requiring Advocate Setlojoane to hand over his client’s funds paid as fees.

To compel him to become an accomplice against his own client by disclosing privileged communications or assisting in the prosecution of that client would strike at the very heart of the faithful discharge of a lawyer’s ethical duties, the court found.

It said even if he were to ultimately fail on the merits before the High Court on remittal, his pursuit of the appeal has undoubtedly served the public interest by elucidating the scope and application of the lawyer-client privilege within our legal system.

Staff Reporter

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Judge grills prisons boss

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THE chairman of a commission of enquiry investigating the escape of prisoners in Maseru last year has issued a damning assessment of the Lesotho Correctional Service (LCS) boss’ leadership skills.

Justice Realeboha Mathaba grilled Mating Nkakala over the lack of a strategic plan for the LCS.

He said the Lesotho Correctional Service Act mandates the commissioner to draft policies for the organisation.

Nkakala responded by saying they were on the verge of engaging a consultant to help draw up strategies for the LCS.

“Normally consultants do not do everything, they just facilitate, meaning you have to have a vision as a leader,” Justice Mathaba said.

He also asked Nkakala about how long the institution has been operating without a clear strategic plan and policies and he answered saying the last time it was done was in 2010.

“Meaning for the past 14 years the institution has been operating without any direction,” Justice Mathaba said.

Nkakala admitted that it has been 14 years without a strategic plan.

Justice Mathaba again asked Nkakala if he had received any training before getting into high office.

“Not only you but other officers who help you. Did you get any training?”

Nkakala said their wish is for every officer to get training and attend workshops on their promotion to the next rank.

“But, due to budget constraints, we cannot get such training,” Nkakala said.

Justice Mathaba said most of the problems that Nkakala had mentioned show that there is lack of leadership and teamwork.

“It is evident that there is no teamwork between you and your senior officers,” he said.

Nkakala also conceded that there are divisions among the staff with some supporting him while others do not.

He said there are some officers who work well with him, “even though it is not everyone who supports me”.

Justice Mathaba said Nkakala should have been equipped with the necessary skills to lead the institution.

“I am still on the issue of how capacitated you are in leading the institution,” he said.

He said Nkakala is still leading the institution by using the assistant commissioner’s tactics and principles as he never received any training after being promoted.

“Did you get any training that equipped you with the leadership skills while still an assistant commissioner?”

Nkakala said he recalled attending a course.

Justice Mathaba then said based on Nkakala’s evidence, he sees that there is no teamwork at the institution’s leadership.

Nkheli Liphoto

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