Lesotho’s byzantine politics have made it into the courts yet again, this time leading to an important constitutional decision and, in its wake, a large sum being demanded from the government for alleged slander.
On May 14, investigative journalist Ralikonelo Joki was murdered as he left the studio where he had presented his late night show. Two days later, the government imposed an indefinite night-time curfew to “reduce violent crime”.
Then, on May 17, members of the national security service (NSS) served the country’s minister of small business, Machesetsa Mofomobe, who is also the leader of the minority Basotho National Party, with a warrant demanding he hand over his cellphones. He refused, and the officers left. The next day, he filed court papers contesting the warrant.
On the same day, members of the NSS served a warrant on the youth leader of the Democratic Congress party, Moeketsi Shale, demanding all his phones. He complied with the request, but also immediately approached the court.
The two political leaders asked that the section of the National Security Service Act under which the warrants were issued be declared unconstitutional and that the issuing of the warrants be declared a contravention of their constitutional rights.
Now a three-judge high court bench, sitting as a constitutional court, has obliged on both counts, with chief justice Sakoane Sakoane and two other judges saying the main issue underlying the dispute is “the legal accountability of Lesotho’s NSS”.
NSS director-general Pheello Ralenkoane had made the application for the warrants to the minister of defence, national security & environment — a position held by Prime Minister Sam Matekane. However, the warrants weren’t signed by Matekane but by a minister in the prime minister’s office.
In an affidavit forming part of the case heard by the court, Ralenkoane states that the NSS wanted the phones to get information about Mofomobe’s possible involvement in the murder of Joki and to see what classified information he had been sent by a member of the NSS. He also made allegations of money-laundering and other crimes against Mofomobe.
Mofomobe denied all these allegations, claiming the NSS was really after him because of his work in exposing corruption and other abuses of power by the government.
In deciding the dispute, the court was concerned with whether the legislation empowering the NSS to request a warrant sufficiently protects the rights of those targeted. For example, the law allows such a warrant to be requested if the officer seeking it claims it is the only way that crucial information can be obtained. But the law as it stands doesn’t require the NSS to explain what alternatives (to a confiscation warrant) have been explored and why these have been found “not to be reasonable”.
“This gives a free pass to the NSS and the minister”, and the procedure lacks the safeguards needed to “guard against abuse of power”, said the court. Without them, this key section “lacks the qualities of a law that ensures that seizures and searches are kept to what is necessary and proportionate in a democratic society”.
In addition, the minister who signed the warrants in this instance was not designated to do so, and on this ground alone the issuing of the warrants was invalid.
The key section of the legislation ‘lacks the qualities of a law that ensures that seizures and searches are kept to what is necessary and proportionate in a democratic society’
‘A mass of annexures’
Not helping the NSS’s case was that it had attached a printout of WhatsApp messages between Mofomobe and an NSS officer to its answering affidavits but had made no effort to show how any of the messages could be “classified” or harm national security.
It is unacceptable to “throw a mass of annexures … to the court” without explaining their relevance, said Sakoane. Moreover, some of the messages were “trivia, useless, in the public domain or even [had] nothing to do with national security”.
As for the allegation that Mofomobe was involved in murder and money-laundering, there was no “articulation of the basis” on which these serious allegations were made, the court found.
However, the matter isn’t over. Mofomobe has launched another case: he wants R5m from the government and the NSS for defamation, including for the murder and money-laundering claims they made against him.
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