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Molibeli’s fate sealed

as ConCourt judgement clears the way for his dismissal…

Moorosi Tsiane

POLICE Commissioner Holomo Molibeli is now a dead man walking.

He faces dismissal anytime from now after the Constitutional Court rejected his application to stop Prime Minister Moeketsi Majoro from advising King Letsie III to sack him.

Molibeli’s dismissal and replacement with a more focused boss will be a huge relief for a country now mired in endless violent crime, earning itself the dubious distinction of being number one in Africa and sixth in the world for homicides.

Regarded by some as possibly the worst ever police commissioner, Molibeli seems not to have anytime to attend to national policing work as he is mostly in the courts fighting his subordinates.

As a crime wave has escalated across Lesotho – with women and children bearing the biggest brunt – the Lesotho Defence Force (LDF) has now assumed a more active policing role with soldiers being frequently deployed at public places to try and deter criminals.

The Constitutional Court bench, comprising of Justices ‘Maseforo Mahase, Mabatšoeneng Hlaele and Moneuoa Kopo, this week ruled that it had no jurisdiction over Molibeli’s application because there was nothing unconstitutional about Dr Majoro’s quest to recommend his dismissal.

Moves to fire the police boss were being conducted in terms of the Police Service Act of 1998 whose constitutionality was not being challenged by Molibeli, the court ruled. It said if the commissioner felt the premier was violating the sub judice principle by pushing for his ouster while the matter was already before the High Court, he ought to have gone back to the same court to challenge Dr Majoro.

The net effect of the judgement is that Dr Majoro, who has been angling to get rid of the embattled police boss since June, can go ahead and advise the King to dismiss him. Only then can Commissioner Molibeli seek a review of the decision in the High Court, not the Constitutional Court. Furthermore, contrary to Commissioner Molibeli’s argument, there cannot be any violation of the sub judice principle before Dr Majoro has actually recommended his ouster. At the time of Molibeli’s application, Dr Majoro had merely asked Molibeli to show cause why his dismissal should not be effected.

Molibeli had initially rushed to the High Court to stop the premier from recommending his dismissal. This after Dr Majoro had penned a 1 June 2022 letter asking Commissioner Molibeli to “show cause” why he (Majoro) could not advise the King to fire him on a plethora of charges including his legendary incompetence.

Even as that application was pending, the commissioner again approached the Constitutional Court to stop what he said were unconstitutional moves by Dr Majoro to oust him while the same matter was before the High Court.

He claimed that Police and Public Safety Minister, Lepota Sekola, had called him to inform him that the premier had gone ahead to recommend his dismissal notwithstanding his High Court application challenging the same.

By so doing, Molibeli argued that Dr Majoro was acting unconstitutionally by seeking his ouster when the matter was sub judice (pending before the High Court).  He then asked the Constitutional Court to bar Dr Majoro from making any moves against him until his original High Court application had been finalised.

But in dismissing Commissioner Molibeli’s application this week, the Constitutional Court bench ruled that it had no jurisdiction over the matter because Dr Majoro’s moves to fire the police boss were not unconstitutional.

The court bench noted that the sub judice principle which Molibeli was relying upon to stop Dr Majoro was merely a common law principle not a constitutional principle. Therefore it could not be a basis for bringing an action to the Constitutional Court as it only dealt with constitutional matters.

Dr Majoro, Minister Sekola, Attorney General Rapelang Motsieloa and King Letsie III were the respondents. The case was heard on 17 and 30 August 2022. Judgement was handed down on Tuesday.

Molibeli’s lawyer, Tekane Maqakachane, had argued that Dr Majoro was in breach of the constitution through his insistence of recommending the commissioner’s dismissal while the matter was sub judice in the High Court. Advocate Maqakachane had argued that the sub judice principle was sacrosanct as it was aimed at protecting the integrity of the courts and ensuring that court decisions are not rendered moot and ineffective by any actions and decisions taken by leaders like Dr Majoro.

He further argued that the premier had violated the constitutional principle of separation of powers which guarantees the courts’ independence from interference from the executive or parliament and vice versa.

“By virtue of the fact that he (Majoro) is prime minister and head of the executive, he is barred from encroaching into the powers of the judiciary by making decisions that adversely affect the functions of the court. His decision to continue to advise the King to retire the applicant during the pendency of CIV/APN/0179/ 2022 (Molibeli’s High Court application), violates the separation of powers which provides that each arm of government should be independent of the other,” Adv Maqakachane argued.

However, the respondents’ lawyer, Motiea Teele, counter-argued that Molibeli’s application was wrongly before the Constitutional Court because it was not a constitutional matter. He argued that the sub judice principle that the police boss had based his application upon was not a constitutional principle aimed at protecting the independence of the courts.

It was merely a common law principle meant to protect the integrity of the courts, he argued. Therefore the Constitutional Court had no jurisdiction to entertain the matter, he argued.

“The sub judice principle is not intended nor can it be an instrument to protect judicial independence… The impartiality of the courts to make independent decisions is not dependent on the sub judice rule. Nor is its violation an impediment to institutional independence,” argued Adv Teele.

He argued that even if the sub judice principle had indeed been violated, an application ought to have been filed before the court that was already seized with the matter. In this particular case, argued Adv Teele, Molibeli ought to have approached the High Court, not the Constitutional Court if he felt aggrieved.

He argued that in seeking Molibeli’s ouster, Dr Majoro would have been exercising his powers in terms of the Police Service Act of 1998.

The commissioner could approach the High Court for a review of the decision only after he had been ousted from office and not before this had happened, Adv Teele argued.

The Constitutional Court bench, whose judgment was read out by Justice Hlaele, essentially concurred with Adv Teele. The court had no jurisdiction over Molibeli’s application, the judges ruled.

Justice Hlaele said if Molibeli was convinced that the sub judice rule had been violated, he ought to have approached the High Court for relief as it was already seized with his previous application.

“It is evident that the sub judice rule is not a constitutional principle,” Justice Hlaele said.

“It (sub judice rule) is a principle to guard against making a mockery of proceedings that are before a court. It shields the integrity of court from making rulings that are ineffective.

“Having concluded that the sub judice rule is not a constitutional principle but a common law principle that protects the integrity of the court, I turn to the present case and ask: does this court have jurisdiction to adjudicate on the present case?

“The proper forum would be the court which is seized with the pending matter. Even in those circumstances, the application to that court would have to be preceded by an overt act of a respondent, which act is intended to discredit the power of the court to make an effective judgement.

“It is for this reason that this court comes to a conclusion that it has no jurisdiction to entertain this matter. In the same vein, the submission by Mr Maqakachane that the purported advice of the prime minister violates section 2 of the constitution, in that the advice of Majoro encroaches on the independence of the judiciary, flouts separation of powers and in turn the sub judice rule, suffers the same fate as the rule of law argument.

“The reason being, in this particular case, the Act under which Majoro is purported to have acted under (the Police Service Act) is not under constitutional scrutiny. Secondly, the very act of advising the King was found not to exist once Sekola’s alleged call to Molibeli (informing him that the premier had advised the King to fire him) was found to be inadmissible.

“Therefore, the application is dismissed on the grounds that this court has no jurisdiction. There is no order as to costs,” Justice Hlaele said.

The effect of the ruling is that Dr Majoro can proceed with recommending Molibeli’s dismissal. Should he be dismissed, this would bring an end to his disastrous five year tenure which has been blighted by his incompetence as far as dealing with rampant crime and police brutality are concerned.

Under his watch, Lesotho has scaled the rankings to assume a position among the top six most homicidal nations of the world. Women and children have bore the biggest brunt of the killings during Molibeli’s tenure while policing has effectively collapsed.  Some victims who have made personal pleas to Molibeli directly over police inaction after their relatives were killed by known assailants have simply been ignored by the commissioner. Women who have gone to report rapes at police stations have on occasion been told it was their fault because they wore suggestive clothes.

With the Lesotho Mounted Police Service (LMPS) in complete paralysis under Molibeli’s stewardship, the army has had to chip in to assume some policing duties. Heavily armed soldiers have now become common at public places like shopping malls to try and deter criminals.

In addition, Molibeli has suffered the ignominy of being dragged to court on countless occasions by the Lesotho Police Staff Association (LEPOSA).

The militant police association accuses him of incompetence, including the failure to deal with the thorny issue of police brutality as well as bias and cronyism.

In addition to falling out with Dr Majoro and LEPOSA, Molibeli does not see eye to eye with some of his top lieutenants like Deputy Commissioner Beleme Lebajoa. The latter has a pending application to stop the police boss from transferring him from the Criminal Investigations Division (CID) to the police’s Finance and Infrastructure Development (FID).