By Qoboko Makhakhe

The events of Monday, 24 February 2020, at the Maseru Magistrate Court are common cause. The Magistrate Phethisa Motanyane granted Adv. Qhalehang Letsika prayer that the matter be referred to the constitutional court for interpretation.

Can a sitting Prime Minister be indicted?

Albeit, in a different jurisdiction, jurisprudence with a totally different government structure, the matter gained prominence with the Special Counsel Robert Muller reiterating the old Office of Legal Counsel memos that the constitution prevents the indictment of a sitting president.

The reasons for this school of thought vary but a few if not exhaustive are as follows:

  • “The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,”
  • criminal charges against a president would “violate the constitutional separation of powers” delineating the authority of the executive, legislative and judicial branches of the U.S. government.
  • “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,”
  • “If the President is arrested so is the entire executive branch of government.”

“But some lawyers have argued that the nation’s founders could have included a provision in the Constitution shielding the president from prosecution, but did not do so, suggesting an indictment would be permissible. According to this view, immunity for the president violates the fundamental principle that nobody is above the law.”

Having disposed of the Hors d’oeuvres above, let me ruminate the moot point here in Lesotho.

I am of the opinion that the Prime Minister’s counsel does not honestly believe he will get any form of success at the Constitutional court but this is some form of Stalingrad strategy to prolong the matter while political solution is sought.

This is a strategy of wearing down the plaintiff by tenaciously fighting anything the plaintiff presents by whatever means possible and appealing every ruling favourable to the plaintiff. Here, the defendant does not present a meritorious case. This tactic or strategy is named after the Russian city besieged by the Germans in World War II.

The most famous use of the Stalingrad strategy has been by the former South African President Jacob Zuma.

His advocate, Kemp J Kemp, said; “This is not a battle where you send a champion out and have a little fight and that’s it – this is more like we will fight them in every room, in every street, in every house.”

Section 50 (1) of the constitution of Lesotho states that: whilst any person holds the office of King, he shall be entitled to immunity from suit and legal process of all things done by him in his private capacity and to immunity from criminal proceedings done or omitted by him either in his private or official capacity.

The letter and the spirit of our Constitution in both text and structure specifically limits immunity from prosecution to the King. The question is, why?

You might have seen that a criminal charge is normally framed as Rex v Sephethephethe or Crown v Sephethephethe.

Crime anywhere and to anyone is considered an injury to society as a whole. Hence, prosecution is undertaken on behalf of the victim by the entire society. Such collective is held in trust by His Majesty hence his name as Rex or Crown. He is the chief prosecutor and the courts are his. So he cannot prosecute himself in his own courts.
Section 50 on the face of it defeats the argument that the sitting Prime Minister cannot be indicted when one considers its structure and underlying premises. However, as they say the law is an ass.

The principle of unius est exclusion alterius means to express one thing is to exclude another. By specifically naming the King in section 50 in immunity from prosecution, it is invariably to specifically exclude everybody else including the sitting Prime Minister. A classical case of exclusion by inclusion. Or in simpler terms, what the Law does not include it excludes.

Arguments being advanced are that parliament will have to sack the Prime Minister then an indictment can be preferred against him or he can be indicted and charges stayed whilst he serves out his term.

In his op-ed, Yes, the Constitution allows indictment of the President, Laurence H. Tribe noted that: “Nothing in the Constitution supports treating amenability to the criminal process as something that kicks in only after a civil officer has been impeached and removed. To treat a sitting president as immune to that process until his presidency ends is to superimpose upon the impeachment framework – a framework designed as the way to remove a president who commits an impeachable offense that might or might not also be a federal crime – something quite extraordinary in a system priding itself on the axiom that no one is above the law.

“The fact that the Constitution does indeed embody that axiom is illustrated by the care it takes to grant immunities from the law expressly and with relatively precise contours, rather than by implication and with striking imprecision.”

Our constitution like the US constitution grants immunity in section 50 (1) to the King expressly, with precise contours rather than by implication and striking imprecisions.

If a parallel immunity were to be created by implication for the Prime Minister by virtue of his unique place in our government’s structure, any such implied immunity would also need to carve out at least those cases involving crimes committed before inauguration.

To imply Prime Minister immunity without simultaneously excluding those pre-inaugural crimes that were committed before the Prime Minister would be manifestly unjust.

One of the absolute fundamentals of the very idea of liberal democracy, inscribed in the United Nations (UN)’s Universal Declaration of Human Rights, is “All are equal before the law”.

The Prime Minister is subject to the same laws as everybody else, but as a holder of public office, there are also additional legal requirements upon him.

A crime is committed “when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office”, says the Crown Prosecution Service (CPS).
This is going to be an interesting case that will go to the heart of our jurisprudence. The case needs to be allocated to jurists of distinction so that our Law can come out of it richer. NW

*Disclaimer: This is neither a legal opinion nor a scholarly article. It was originally published on Qoboko Makhakhe’s Facebook Timeline. Read the original article here.

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