MASERU — An army officer wants the Constitutional Court to prevent a court-martial convened by Prime Minister Pakalitha Mosisili from trying him for opposing the government’s compulsory pension scheme.
Captain Bulane Sechele, a lawyer who worked in the army’s legal department, faces a court-martial on Monday for allegedly querying the constitutionality of the pension scheme that the government has proposed for soldiers and other employees.
The government proposed the scheme in 2008 through an Act of parliament.
Sechele’s trial by the military court ordered by Mosisili arose from the research he carried out on the legality of the scheme.
His research revealed that the government pension scheme was unconstitutional when it involved soldiers.
After his research his findings were passed on to army commander Thuso Motanyane who also endorsed it and ordered the director of the army’s legal services to take up the matter to the attorney general Tšokolo Makhethe for consideration.
Sechele’s opinion on the legal implications of the scheme was endorsed by Motanyane on February 7, the court papers say.
Based on his findings Sechele filed a case in the Constitutional Court challenging the constitutionality of the pension scheme.
The Constitutional Court will hear the case on November 8.
In his affidavit Sechele says he also circulated copies of his findings to junior officers who attended a presentation on the scheme at Ratjomose barracks on January 28.
But ever since he made those findings he has been having trouble with the army authorities.
He says, in a sudden turn of events, Motanyane turned against him and convened an inquiry to investigate him and not his findings.
The inquiry started on March 16 and ended on April 16.
But Sechele also complained that he had not been given the record of proceedings of the board.
When he finally got the record it did not have the findings and recommendations.
His troubles worsened on Tuesday last week when Mosisili ordered a court-martial to try him.
Sechele is accused of allegedly distributing his findings to junior officers without authority from his superiors.
The order says Sechele’s conduct was “to the prejudice of good order and military discipline, committed during the service of the accused in the Lesotho Defence Force, contrary to the provisions of section 79 of the Act”.
The charge sheet says: “On or about 28 January, 2010, the accused wrote and circulated to officers of LDF, including junior officers, without leave thereto of, or on behalf of, the commander of the Defence Force, a document denying the legality of an Act of Parliament, namely the Public Officers Defined Contribution Fund Act No. 8 of 2008, insofar as it relates to members of the LDF”.
He is also charged with breach of conduct under the Lesotho Defence Force Act in that “during or about April 2010, without leave thereto of, or on behalf of, the commander of the defence force, the accused brought an application in his own name in the Constitutional Court to set aside the provisions of the Public Officers Defined Contribution Fund Act, No. 8 of 2008, on the grounds that, insofar as such provisions relate to members of the Lesotho Defence Force, they are unconstitutional”.
This week Sechele rushed to the Constitutional Court again seeking an order interdicting the convening of the court-martial to try him next Monday.
In his affidavit he says he rushed to court because he was surprised that he had been served with an order to appear before the court-martial instead of being furnished with a detailed record of proceedings of the board of inquiries which investigated him.
“Instead of being given the findings and recommendations of the board, on the 6th day of October 2010 I was served with a Convening Order for Court-Martial from first respondent (Mosisili) dated the 5thday of October 2010,” Sechele said.
Mosisili’s order to convene the court-martial to try Sechele is also attached in court papers.
Subsequent to the convening order Sechele was served with a subpoena calling him to appear before court-martial on Monday next week.
He says if the court-martial tries him before the court decides on his case in which he is challenging the pension scheme he would suffer prejudice.
He said the charges he is facing in the court-martial revolve around the case which he has already filed in the Constitutional Court to determine the legality of the compulsory pension scheme.
“The ‘Particulars of Offence’ of all nine charges are actually the subject matter of, or relate squarely to the issues raised in Constitutional Case No.6/2010.
“It stands to reason therefore, that I will be seriously prejudiced in my defence if the court-martial hears my matter before the determination of the Constitutional Court matter,” he said.
Sechele wants the case to be treated as an urgent matter. The case is expected to be heard today.
If his application succeeds it would mean that Mosisili’s order to convene a court-martial to try him will fall away.