Takes on DCEO in his ongoing corruption probe
DEPUTY Prime Minister (DPM) Mothetjoa Metsing wants the Constitutional Court to declare the acquisition of his banking details by the Directorate on Corruption and Economic Offences (DCEO) unconstitutional.
In papers filed before the Constitutional Court this week, Mr Metsing is challenging the release of his banking details by Standard Lesotho Bank and NedBank Lesotho to the DCEO, which he wants declared a violation of his rights to private and family life as guaranteed by Section 11 of the country’s constitution.
The DCEO obtained the information as part of corruption investigations against Mr Metsing, who is also the leader of the Lesotho Congress for Democracy (LCD), which formed a coalition government with the All Basotho Convention (ABC) and Basotho National Party (BNP), in June 2012.
However, Mr Metsing—who cites the DCEO Director General, DCEO, Minister of Justice, Human Rights, Rehabilitation, Law and Constitutional Affairs, Attorney General, Standard Lesotho Bank and NedBank Lesotho as first to sixth respondents, respectively—not only accuses the DCEO of violating his rights, but also believes the two financial institutions should have refused to disclose the information, or better still, consulted him first before entertaining the request.
In his affidavit, Mr Metsing gives a background of the case and why he will not comply with the DCEO’s demands for information pertaining to the source of the funds deposited into the two bank accounts between April 2013 and January 2014.
In the court application, Mr Metsing also wants the DCEO to surrender or destroy all the information obtained from the two banks as part of the investigations, and the anti-graft body to be “restrained and interdicted” from “any further violations” of his rights.
The DPM notes in the affidavit: “On the 10th of July 2014, the (DCEO), purporting to act in terms of Section 9 (1) (c) of the Prevention of Corruption and Economic Offence Amendment Act (PCEOA), wrote me a letter (requesting information relating to the deposit of monies in the two bank accounts).
“It will immediately emerge ex facie, that the (DCEO) was in possession of information about not just my bank accounts, but also had intimate knowledge of the cash deposits and dates of such deposits.
“I declare that I never gave the DCEO this information nor did I authorise anyone to disclose this information. This was given in stark violation of my rights to privacy guaranteed by the constitution.”
The LCD leader says his lawyers have since asked the DCEO to justify their request and under what authority his banking details were obtained, but to no avail.
The DCEO, he adds in the court papers, declined to answer directly or at all to the specific questions raised by his lawyers in their written communication of 22 July 2014.
“On the 30th July 2014, the DCEO simply reiterates a fact that is already contained in the first letter (demanding information on the sources of the funds deposited in the accounts).
“Though the DCEO describes the demand as a request, it is nothing of the sort. It is a demand and failure on my part to supply the demanded information, or if it is considered that I supplied false information, that is a criminal offence in terms of Section 7 (2) (b) of the Act as amended, of which I would be charged.”
However, Mr Metsing says his lawyers have advised him that the DCEO’s request is illegal, hence he would not be complying with it.
“I am legally advised and believe the same to be true that Section 7(1) (c) read with 7(2) (b) is unconstitutional.
“I do not intend complying with the unconstitutional and unlawful demand (of the DCEO) based on that law.
“It follows therefore, that unless this court entertains this application and strikes the said law as unconstitutional, I stand the risk of criminal prosecution and sentencing.
“It is important to also disclose that as recently as the 1st August 2014, I had been summoned to appear before the Maseru Magistrate’s Court on ill-prepared charges which were withdrawn on the same day, and I have no doubt that those were connected to what I am being subjected to by the first (DCEO Director General) and second (DCEO) respondents, herein,” he states in the affidavit.
Mr Metsing also takes issue with the two banks for acceding to the DCEO’s request, without consulting him.
“In obtaining and receiving information regarding my bank accounts from the fifth and sixth respondents (Standard Lesotho Bank and NedBank Lesotho, respectively), without informing me, they collectively violated my rights to privacy guaranteed by Section 11 of the Constitution. My personal banking details are matters of my private life, which should not be disclosed without my authority by the fifth and sixth respondents.
“I wish to disclose to this honourable court that I sought information from the managers of the fifth and sixth respondents regarding the basis and instruments used by the DCEO to obtain information of my bank accounts and details of my deposits. Managers of both banks declined to give me the information, save to say they supplied the information under Section 8 of the PCEO Act, and hence claimed statutory compulsion.
“But on legal advice, I have been informed that the banks made themselves willing parties to the violation of my privacy, which they are supposed to protect. I am legally advised that in terms of Section 8 (2), a party from whom information is required under Section 8 (1) may refuse to supply the same without exposing himself to criminal liability, if he has reasonable excuse.
“The fifth and sixth respondents knew, or ought to have known, that the notice requiring my private banking information is a matter that violates my right to private and family life guaranteed under the constitution, and that they could decline giving out the information.
“I declare that at the very least, they ought to have contacted me to explain to them why they should not give away my private information. I verily aver that this must be because by using their banking facilities, I did not thereby surrender my rights of privacy to be exercised by me only subject to their approval.
“I also declare that in the circumstances where my private banking information has been obtained and given away in violation of my constitutional right, this honourable court will provide the relief sought.”
Meanwhile, Mr Metsing has also criticized the leakage of information regarding the DCEO investigations and cites two reports of the probe which appeared in the Lesotho Times editions of June 26-July 2 2014, and July 10-16 2014.
“The inference is irresistible that it is the first or second respondents, or their staff, who fed the Lesotho Times this information.
“The reason why the first and second respondents have made peace with the disclosure is that they are complicit in violating my privacy and tarnishing my image.
“Newspaper reports, which carry reliable and confirmed activities of the first and second respondents, reveal that they are acting in consent with the police, as indeed in terms of Section 6(1)(f) of the PCEO Act, they are entitled to assist the latter.”
Mr Metsing has further asked the respondents to notify his lawyers by Thursday next week if they intend to oppose the case.