One long-standing and highly recommended strategy for improved results at any organisation is specialisation; something that should define the Directorate on Corruption and Economic Offences (DCEO) in its core mandate to fight corruption in Lesotho.
However, while specialisation has become a common policy to strengthening the ability of governments to detect, investigate, prosecute and monitor corruption in many countries, the adjudication and punishment of perpetrators have exclusively remained in ambits of conventional judicial system.
This has proved problematic in Lesotho where there is an overwhelming backlog of cases.
The DCEO is famous for pronouncing the launch of investigations against persons of public interest suspected of having engaged in corrupt activities, but little has been heard, either from it or the media about its success in the prosecution and or conviction rate.
In fact, in response to a question on prosecution rate that I posed to the DCEO Director General Borotho Matsoso on December 19, 2018 in a media briefing, he admitted “I am not really satisfied with the prosecution rate of our cases. Hearings for some of them is very slow”.
Another challenge, he adds, lies with the courts, “whereby corruption cases are still treated like other criminal cases, with no special attention. We need to adopt a different approach to the way we treat corruption cases due to the severity of impact they bring on the country’s economy.”
Specialised Courts for Corruption Cases
The point that Advocate Matsoso drives home is that there is nothing unique in the long roll of cases pending in the courts of law in Lesotho, which can help differentiate corruption cases from any other criminal cases. His concern raises the need to establish corruption specialised courts in Lesotho.
’Malimpho Moshoeshoe, a public educator at the corruption watchdog, has even invoked the issue of political will to ensure the establishment of these courts in the fight against corruption.
At an event organised by the Lesotho Council of Non-Governmental Organisation, better known as the NGO Week, I had put the question of specialised courts to the DCEO delegation in the persons of Moshoeshoe and Sefako Seema, Head of Legal Prosecutions.
Moshoeshoe has challenged that “if our country was really committed to the course of fighting corruption, then we would have a situation where corruption cases receive special treatment and do not form part of the ordinary case roll.”
She said Lesotho should copy from Malaysia “where they have a specific time which is meant for the courts to attend only to corruption cases and it happens from the level of local courts in our context through out to the apex court”.
For Moshoeshoe, the very same courts that are in Lesotho can be used in the same fashion as is the case of Malaysia, and that this approach can help the public to monitor the progress of the DCEO.
Specialisation may provide particular value in the context of the judicial system and its role in the fight against corruption.
Lesotho is no exception to many countries which their judicial system is plagued by significant backlogs leading to delays in bringing cases to trial and creating opportunities for evidence to be lost.
The establishment of specialised courts help adjudicate corruption-related cases more expeditiously and may be able both to lessen the burden on existing courts.
In the case of Nigeria for example, media reports indicated that the special courts designated for corruption and financial crimes cases in that country have delivered 324 judgements in six months, struck out 12 cases and reserved 62 cases for judgement in the last six months.
Despite that broad international consensus exists on the value of creating an anticorruption agency with the powers to investigate, opinion still remains divided on whether these agencies should also have powers to prosecute the crimes they uncover.
In an interview with the MNN Centre for Investigative Journalism last month, Director of Public Education and Corruption Prevention Litelu Ramokhoro said they would very much appreciate being granted prosecutorial powers.
“We would jump at this opportunity if it was given to us. The experience we get from colleagues in those countries that they have prosecutorial powers is that they are doing very well in terms of conviction rate, and general prosecutorial rate because there is no middle man between”.
He said in countries with a set up like Lesotho where the Director of Public Prosecution looks into their matters as anticorruption agencies and decide whether the case is due for prosecution or not, “people are frustrated”.
He however said that “the only difference we have had in Lesotho is that, the DPP in our case, delegated some of her powers to our office that is why we have the prosecutorial function within the DCEO. But we still do the prosecution, under the DPP’s office, so what we wish for is to have direct prosecutorial powers”.
Head of Legal Prosecutions in the DCEO Sefako Seema said while it is a good idea to have prosecutorial powers because one is able to drive the investigations at own pace, “you should not be seen permitting that power be concentrated on one person because should that be the case, you are running the risk of abuse.
“While I personally like the idea, we must also create some checks and balances by somebody else. That would enable to get rid of some of the assertions that DCEO is selective in its investigations in as far as those in government and in opposition are concerned,” Seema said.
Lesotho is ranked 74 in the list of least corrupt countries out of total 175 states, according to the 2017 Corruption Perception Index.
Corruption rank in Lesotho averaged 73.92 from 2005 until 2017, reaching an all-time high of 92 in 2008 and a record low of 55 in 2013. The impact of corruption cannot be underestimated.
In July 2018, Transparency International said roughly 43 percent of Africans are living in poverty while over US$50 billion worth of stolen assets flow out of Africa every year. This is money that could have been used to invest in jobs and social services, where additional resources are needed most.
The solution to the debate whether or not to grant the anticorruption agencies (in this case the DCEO) a direct prosecutorial power is the establishment of a monitoring by the legislature or an independent review commission as a means of checks and balances.
As happened so often in the past in Kenya, the head of the anticorruption agency and the head of the prosecutor can get into a public spat over who is to blame, leaving the public unsure who is at fault while poisoning relations between working level staff in the two agencies.