Lesotho’s tough anti-corruption laws came under the spotlight in the high court this week, writes Carmel Rickard.
Lesotho’s determination to root out corruption has impressed many. It was shown a decade ago with a series of successful bribery charges against high-profile international companies on the Katse Dam project.
But are tough anti-corruption laws dating from that period constitutional?
This week, they came under the spotlight after prominent politician Mothejoa Metsing challenged their validity in the high court.
In the wake of Lesotho’s election, Independent Media foreign editor Peter Fabricius described Metsing as a “notoriously unfaithful coalition partner”.
That’s putting things mildly.
Metsing, who heads the Lesotho Congress for Democracy, has played a crucial role in recent attempts to form a coalition government.
Until 2012, he partnered Prime Minister Pakalitha Mosisili in a coalition government. Then Metsing initiated a separation rather than a divorce. He and his party walked out of the common home and shacked up with Tom Thabane’s All Basotho Convention, thus allowing Thabane to form a coalition.
It didn’t last long.
Late last year, Metsing dropped Thabane, the resulting crisis saved from catastrophe only by the efforts of Deputy President Cyril Ramaphosa.
Now, after new elections, Metsing is back with Mosisili, though no one imagines this is anything other than a temporary home.
As he forms his new government, Mosisili will surely be studying a new high court decision following a challenge brought by Metsing against the directorate of corruption and economic offences, the justice minister, the attorney-general and some banks operating in Lesotho. The court heard that towards the end of 2013, the directorate received information about large-scale bribery and corruption.
It concerned construction company Big Bravo, which, informants said, was illegally awarded a road-building tender. According to these allegations, Metsing, the minister of local government and chieftainship affairs at the time as well as deputy prime minister, received bribes from the company.
The directorate launched a “discreet and confidential investigation” that showed Metsing had appointed the deputy principal secretary as his delegate on the adjudication panel and that the initial evaluation report had been “revised to favour the company”.
The directorate then contacted Standard, Nedbank and First National banks, saying they were conducting an official investigation under the prevention of corruption laws and asking for the statements of Metsing’s accounts.
Standard’s records showed “various unattributed cash deposits” into Metsing’s account totalling R328 000.
Nedbank’s statements reflected “numerous unattributed cash deposits” with a total of R118 000. Metsing’s FNB platinum account showed similar deposits of virtually R525 000.
Last July, the directorate wrote to Metsing that it was investigating under the corruption laws involving the ministry of local government and senior government officials in Lesotho and asked Metsing, in terms of these laws, to explain the origin of the funds.
Metsing responded with court action, questioning whether the anti-corruption legislation was constitutional. He claimed that when the law empowered the directorate to approach his banks for information without requiring the banks to obtain his consent to hand it over, this violated his constitutional right to privacy.
The court, consisting of three seconded South African high court judges, has now held the legislation to be constitutionally sound. Though the banks’ notices were not issued “with the necessary attention to detail” – in some places they quoted the wrong sections of the law – they were still valid.
If the law infringed his privacy, this was justified by the legitimate government purpose of investigating corruption.
Even if the statements were unlawfully obtained because the wrong sections were quoted or Metsing’s privacy rights were violated, they could still be admissible evidence in any subsequent case.
Metsing has lost this round, but what now? The court stressed the dispute was about the parties’ constitutional rights: the right to a fair trial, to silence and privacy. It was not about the facts involved in the investigation or whether Metsing committed corrupt acts.
Those issues had to wait for the outcome of the preliminary round.
Now that has been resolved, Metsing will have to reply to the directorate’s questions about all those deposits.
His answers and the directorate’s resulting decision on whether to prosecute could have far-reaching consequences for politics in Lesotho.
* Carmel Rickard is a legal affairs specialist. Email [email protected] or visit www.tradingplaces2night.co.za
** The views expressed here are not necessarily those of Independent Media.