Kamoli wins bat­tle against judge

Lesotho Times - - News - Tefo Tefo

Jus­tice Molefi Makara on Tues­day re­cused him­self from a case in which 22 sol­diers want army com­man­der Lieu­tenant-gen­eral Tlali Kamoli (pic­tured) jailed for con­tempt of court.

The sol­diers were ar­rested be­tween May and June this year for sus­pected mutiny and are de­tained at Maseru Max­i­mum Se­cu­rity Prison.

How­ever, on 5 Oc­to­ber, the judge ruled their de­ten­tion was il­le­gal and or­dered their re­lease and place­ment on open ar­rest.

Jus­tice Makara also said the sus­pects should at­tend their on­go­ing Court Mar­tial pro­ceed­ings from home.

But de­spite the or­der, the sol­diers re­main in prison, prompt­ing their con­tempt ap­pli­ca­tion on 2 Novem­ber.

The case was sup­posed to be ar­gued be­fore Jus­tice Makara on 20 Novem­ber, but Lt-gen Kamoli’s lawyer, At­tor­ney Qhale­hang Let­sika, in­formed the judge that the com­man­der wanted him off the case for fear of bias.

The lawyer ar­gued Jus­tice Makara was likely to be bi­ased against Lt-gen Kamoli af­ter the judge ex­pressed anger, in cham­bers, over crit­i­cism lev­eled against him over a lo­cal ra­dio sta­tion. The crit­i­cism con­cerned the judg­ment Jus­tice Makara had made in the sol­diers’ first con­tempt ap­pli­ca­tion.

Jus­tice Makara on 16 Oc­to­ber ruled the LDF chief was not in con­tempt for not re­leas­ing the sol­diers de­spite his 5 Oc­to­ber rul­ing order­ing him to do so. The judge noted LtGen Kamoli might not have clearly un­der­stood the or­der hence his fail­ure to re­lease them.

It was this de­ci­sion which was crit­i­cised on ra­dio, with the crit­i­cism prompt­ing the judge to sum­mon crown and de­fence lawyers to his cham­bers.

On Tues­day, Jus­tice Makara told the packed court­room he was tak­ing him­self off the case not be­cause of what had been al­leged in the re­cusal ap­pli­ca­tion sub­mit­ted by At­tor­ney Let­sika but the “col­lapsed” re­la­tion­ship be­tween him and some of the lawyers in­volved in the case. To sup­port his re­cusal ap­pli­ca­tion, At­tor­ney Let­sika sub­mit­ted an af­fi­davit de­tail­ing what had gone down in the judge’s cham­bers bers on 5 Novem­ber.

“If I am quoted to have ve said I would im­prison the com­man­der mman­der if cir­cum­stances al­low, the court should place it­self in the shoes of that per­son as he might per­ceive I am threat­en­ing to im­prison son him,” Jus­tice Makara said as s he an­nounced his re­cusal.

“I have con­sid­ered thatt the ad­min­is­tra­tion of jus­tice is big­ger than my­self and I should not be an ob­struc­tion.

“For the rea­sons I haveve stated, that is, the col­lapse of re­la­tion­ship ation­ship be­tween me and the lawyers, ers, lack of con­fi­den­tial­ity and ul­ti­mate­ly­mately the per­cep­tion of the pub­lic, ublic, par­tic­u­larly the im­pres­sion­s­sion ra­di­ated to the com­man­der, er, in the premise and with a heavy heart, I find it un­avoid­able le and in the in­ter­est of jus­tice too re­cuse my­self. And with the very­ery same heavy heart, I re­tire from this his case.”

The judge also said he was dis­ap­pointed by At­tor­ney Let­sika’sika’s dis­clo­sure of a con­ver­sa­tion that took place in his cham­bers.

Mean­while, be­cause of Jus­tice Makara’s re­cusal, a new judge would need to be as­signed the case. It was not im­me­di­ately clear when such an ap­point­ment would be made.

At­tor­ney Let­sika’s af­fi­davit ‘On or about 4 Novem­ber 2015, I re­ceived a tele­phone call from the judge’s clerk, Mr (Eric) Ra­male­fane, in terms of which he in­formed me that his Lord­ship, Mr Jus­tice Makara, would like to see us with the other side rep­re­sent­ing the ap­pli­cants in this mat­ter.

‘I duly com­plied. On or about 5 Novem­ber 2015, we con­vened in his cham­bers. In that meet­ing, coun­sel for the ap­pli­cants Messrs (Christo­pher) Le­phuthing and (Koili) Nde­bele, were present.

Jus­tice Makara told us that he was fu­ri­ous be­cause some­one, whose iden­tity he did not dis­close, had made cer­tain re­marks on Har­vest FM ra­dio sta­tion about the fact that he ini­tially granted an or­der di­rect­ing the re­lease of the ap­pli­cants but that he sub­se­quently did not find the com­man­der guilty of con­tempt of court.

The ex­act words that were used by this in­di­vid­ual re­lat­ing to us by His Lord­ship were so egre­gious that they amounted to scan­dal­is­ing the court.

The learned judge had ev­ery rea­son to be ag­i­tated. How­ever, it is the re­marks which he made dur­ing the meet­ing that have made the re­spon­dents (Lt-gen Kamoli, De­fence Min­is­ter Tšeliso Mokhosi, At­tor­ney Gen­eral Tšokolo Makhethe, Court Mar­tial Pres­i­dent Ma­jor-gen­eral Mo­jalefa Let­soela, and Court Mar­tial Pros­e­cu­tor Roland Suhr) con­cerned that he is not likely to bring an im­par­tial de­ci­sion in the mat­ter.

Al­ter­na­tively, the re­spon­dents per­ceive that he is likely to seek to show that he can make an or- der find­ing the com­man­der of the LDF guilty of con­tempt of court.

It is be­cause in our meet­ing, the learned judge made it plain that the speaker was wrong to have ac­cused him of fail­ing to dis­charge his ju­di­cial du­ties be­cause he does not and would not fear to send the com­man­der to jail if he had to.

We ad­vised the judge to stop mak­ing such re­marks but seek le­gal al­ter­na­tives against the in­di­vid­ual who crit­i­cised him over the ra­dio.

The judge was ad­vised to con­sult the At­tor­ney Gen­eral and Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) on the mat­ter.

But he was re­luc­tant to pur­sue t this route be­cause he kept say­ing h he would con­sult his own lawyers.

He was told that his re­marks may cre­ate the per­cep­tion that if he finds the com­man­der of the LDF guilty of con­tempt, it would be to show the pub­lic that he could do it or that if he does not find him guilty it would be be­cause he was afraid to do so as had been sug­gested over the ra­dio.

I must con­fess that I do not want, for pro­fes­sional rea­sons, to di­vulge full de­tails of the re­marks of the learned judge to avoid em­bar­rass­ing him.

It is sig­nif­i­cant though, to indic cate that the is­sue of the per­son mak­ing re­marks about him on Har­vest FM made him un­der­stand­ably very fu­ri­ous with the con­se­quence that he made the pre­sen­ter of the pro­gramme in ques­tion to ap­pear be­fore him.

This is a clear in­di­ca­tion that he t took the com­ment by the per­son who spoke on ra­dio, in very se­ri­ous light.

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