BILLY NTAOTE

Magistrate Court today referred questions on whether Prime Minister Thomas Thabane is immune from charges of alleged murder of his estranged wife Lipolelo Thabane to Constitutional Court.

The ruling was made after Thabane’s lawyer Qhalehang Letsika convinced the court that questions on whether a sitting prime minister can be charged criminally must first be answered by a Constitutional Court before his client can be charged.

Seemingly clutching on straws and buying time to evade the murder charges his lawyer Advocate Letsika argued for referral of the case to a higher court to decide whether a prime minister enjoys immunity from criminal charges or not.

An argument many may maintain is a preserve for the King alone.

Concerns about Thabane’s immunity first surfaced in Attorney General Haee Phoofolo’s mysterious advice against summoning the premier for questioning by the Commissioner of Police last month.

According to Phoofolo, calling Thabane for questioning “while he is still in office as the Prime Minister, is leading the country into unchartered waters that may eventually put our country into a constitutional crisis.

“The Prime Minister is the head of government, meaning all the government institutions including the police, and while in office all the executive powers of the government he leads are vested in him.

“So, summoning him in his caricature as PM like an ordinary project manager elsewhere may be tantamount to undermining his executive authority over government,” Phoofolo said.

When he appeared before the magistrate court today, the expectation was that Thabane would be enjoined as accused number two to First Lady Maesiah Thabane, but this court antic quashed hopes of many naysayers.

Maesiah is the first accused in the assassination of her sister wife Lipolelo. Lipolelo was gunned down in the outskirts of Maseru, in Ha ‘Masana two days ahead of Thabane’s inauguration for a second time as Lesotho’s prime minister.

But immediately after Senior Resident Magistrate Motanyane entered the court room and the proceedings of the case were to start, Letsika raised the following questions which the court entertained.

• Whether a sitting Prime Minister be criminally charged be referred to the High Court in terms of Section 128 (1) of the constitution.
• Whether a member of cabinet appointed in terms of section 88 (a) can be indicted of a criminal offence during his tenure of office.
• Whether a sitting Prime Minister can be subjected to criminal prosecution with the result that he could be remanded as contemplated in the Criminal Procedure and Evidence Act of 1981.
•  Whether sitting Prime Minister enjoys criminal immunity from prosecution whilst holding office.

Magistrate Motanyane then ruled that advocate Letsika raised substantial questions of law.

But this was countered by Prosecutor Mpati Motsoane who argued that referral of the case to be determined by the High Court has to be made where the question arises within proceedings and not before proceedings start.

 “The proceedings have not started as the accused has not been remanded. There is no accused before you who has been charged.

“The concerns raised by the defence have been raised prematurely as there is no accused before court as yet. I do not agree that the question involves the interpretation of the constitution,” said Motsoane.

But Letsika, in reply said once appearing before a magistrate the process of court has commenced and there are proceedings pending before court.

“There need not be somebody before court, once a person has been summoned before court and he does so, the proceedings have started,” he said.

Motanyane, making his ruling said the defence has moved an application for referral of the matter to the High Court.

He said the constitution of Lesotho in section 128 (1) reads: “Where any question as to the interpretation of this constitution arises in any proceedings in any subordinate court or tribunal and the court or tribunal is of the opinion that the question involves a substantial question of law, the court or tribunal may, and shall, if any party to the proceedings so requests, refer the question to the High Court.

And in Section 128 (2) reads: “Where any question is referred to the High Court in pursuance of this section, the High Court shall give its decision upon the question and the Court or tribunal in which the question arises shall dispose of the case in accordance with that decision or if that decision is subject of an appeal under section 129”.

Motanyane said an appeal in the case of Mothibi and another vs the Crown, to which the court was referred, he finds that there is “indeed a substantial question of law raised” and granted the application for referral of the matter to High Court as prayed.

In conclusion Motanyane handed Thabane a lifeline which meant delay for him to be formally charged for the murder of his wife and attempted murder of Thato Sibolla.