MASERU — An army officer who was challenging the government’s compulsory pension scheme lost the case this week after the Constitutional Court ruled that the scheme was in fact to the benefit of public servants.
Captain Bulane Sechele had filed a constitutional case challenging the constitutionality of the government’s compulsory pension scheme.
Sechele argued that the scheme was unconstitutional because it sought to create a compulsory pension scheme for public officers contrary to the provisions of the constitution.
He argued that the constitution provided that pensions for public officers should be obtained from the consolidated fund and not from anywhere else.
Sechele said the compulsory pension scheme violated the constitution because it created something other than the consolidated fund.
The government had in 2008 established the compulsory scheme in 2008 under which all civil servants were to contribute five percent of their salaries to the scheme. The government would contribute 11.2 percent.
The scheme was established under the Public Officers Defined Contribution Fund Act No. 8 of 2008.
Sechele also argued that civil servants were being forced to join the scheme without prior consultation.
The Constitutional Court on Monday dismissed Sechele’s claim on the grounds that the pension fund will benefit civil servants.
High Court judge Justice Semapo Peete, who sat in the panel with other two High Court judges to constitute a Constitutional Court, said Sechele had no reason to complain because he stands to gain from the scheme.
“It is clear that even though contribution is mandatory it is done for the benefit of the applicant.
“The court can only assume that the establishment of the scheme was intended to make maximum pension benefits,” Justice Peete said.
Justice Peete was sitting with Justices Tseliso Monaphathi and Nthomeng Majara.
Justice Peete said the court’s opinion that public officers stand to gain from the scheme was formed from the evidence provided by the principal secretary in Ministry of Public Service Tsukutlane Au.
“In his answering affidavit the principal secretary for the Ministry of Public Service, Tsukutlane Au, said the government contributes 11.2 percent while a public officer contributes five percent.
“He refuses that the pension contribution is made arbitrarily.
“He says the applicant stands to gain more,” Justice Peete said.
The presiding judge, Justice Monaphathi, said Sechele’s application was being dismissed but said there would be no order regarding payment of the lawsuit.
“The prayers fail. However there will be no order as to costs against the applicant,” Justice Monaphathi said.
The dismissal of the case could see Sechele facing a court martial soon.
His trial was temporarily stayed in October to allow the Constitutional Court to deliver judgment on the matter.
Sechele is being accused of conducting an illegal research into the constitutionality of the pension scheme.
He then circulated his findings to other army officers in January.
Army commander Thuso Motanyane in March established a commission of inquiry to investigate Sechele following the research.
Prime Minister Pakalitha Mosisili, as minister of defence, in October made an order to convene a court martial to try Sechele for breach of conduct following his illegal circulation of research findings.
Sechele said he conducted the research in his capacity as a lawyer.
He once worked in the army’s legal department.
But the move to summon Sechele to appear before the Constitutional Court could be scuttled once more because the army officer has already filed another application against the army.
He wants the Constitutional Court to declare some sections of the Lesotho Defence Force Act of 1996 unconstitutional.
Sechele argues some provisions of the military law under which he is being in the court martial should also be declared unconstitutional.
He argues that the breach of conduct under which he is being charged is not clearly defined under military law.
He says under the constitution one cannot be held to be in breach of conduct when he conducts a legal research.
His constitutional case challenging some provisions of the Lesotho Defence Force Act has not yet been set.
But it is likely to be set for next year because the High Court ended its second term of the second session yesterday.
This means that Sechele could still evade the court martial if he succeeds in this case.
Asked if he was planning to appeal against the Constitutional Court judgment Sechele was non-committal on his next move.
He said: “I still have to consider the judgment. I will decide after fully reading the judgment.”