… as prosecution falters again
Mohloai Mpesi
Legal practitioner and former Principal Secretary (PS) of the Ministry of Home Affairs Advocate Borenahabokhethoe Sekonyela was acquitted of corruption charges by the High Court of Lesotho in Maseru yesterday, inter alia as a result of the prosecutors’ incompetence.
Handing down the judgement, high court judge Justice TÅ¡abo Letooane, proved the prosecutions incompetence after ruling that the crown had failed to demonstrate a point of intention to authorise a payment of M588 000 to Kananelo Enterprise in March 2017.
Sekonyela was accused of corruption for authorising the payment in question to a Kananelo Enterprise during his tenure as PS at the Ministry of Home Affairs for work it had not delivered and was therefore fingered to have committed the offence of corruption and charged with contravening section 59 (1) (c) of the Public Financial Management Act 2010 read with regulation 24 (5) (8) of the Treasurer and Regulation Act of 2014.
This came to the fore after his legal representative, Attorney Qhalehang Letsika applied for a discharge application last week after the crown finished all its witnesses. Letsika cited that none of the witnesses testified of mens rea or intention of corruption.
“Most of the evidence led by the crown is common cause…The basis of the application was that the crown has failed to make a prima facie case as they failed to prove mens rea. His contention was that the pieces of legislator did not extrude mens rea,†he said.
Letsika told the court that it was the principle of the interpretation of statute that there is a presumption of mens rea as a requirement for criminal liability that the prosecution failed on.
“On the alternative charge, the accused’s contention was that regulation 24 (5) (a) dealt specifically with the determination officer in the financial… and does not make reference to any other officer in the ministry,†he said.
In his ruling, Justice Letooane indicated that the regulation specifically forbids the Examining Officer to authorise payments in the absence of a delivery note, thus this regulation cannot be used against the accused in the circumstances since he is not an examining officer.
“In the case in casu, the accused was intending on beating the financial year deadline on behalf of the service provider. It can be argued that by authorising payment to the service provider the delivery note can be interpreted an undue benefit to the service provider on the basis that he or she would be using the funds emanating from government without providing the required goods and services.
“Secondly, the contract itself made a requirement of 14 days’ delivery, thus the service provider had an unfair advantage there. However, the missing element from the jigsaw puzzle is the element of mens rea…
“The evidence of the crown falls short of intent of corruption in any form. It is true that the accused rode roughshod over the officials of the ministry including the Financial Controller in the examinant and ordered them to process the payment on the basis of an empty promise from the service giver,†he said.
He said Sekonyela may have been negligent but the requisite intent of corruption was not proved taking into effect that the tender process was put into the letter without the accused’s influence. “As I stated earlier that the accused was negligent in the conduct of his office, he has tried to make amends by issuing a civil case against the culprit, the ministry can still take steps on the basis of the crime they committed…the application of discharge is granted and the accused is acquitted,†he ruled.
