Lawyers take on court mar­tial pres­i­dent

Lesotho Times - - News - Billy Ntaote

There were heated ex­changes in the Court Mar­tial on Tues­day be­tween lawyers rep­re­sent­ing 23 sol­diers ac­cused of plot­ting to over­throw the army com­mand and court pres­i­dent Ma­jor-gen­eral Mo­jalefa Let­soela.

The lawyers had pointed out they could not con­tinue with pro­ceed­ings be­cause the Le­sotho De­fence Force (LDF) was fail­ing to re­spect high Court de­ci­sions re­gard­ing the re­lease of the sol­diers.

Ma­jor-gen Let­soela told the lawyers his court did not have the pow­ers to force the LDF into com­ply­ing with high Court rul­ings. This re­sponse drew an­gry re­ac­tions from Ad­vo­cates Koili Nde­bele and Mon­a­heng rasekoai who are part of a team of lawyers rep­re­sent­ing the mutiny sus­pects de­tained at Maseru Max­i­mum Se­cu­rity Prison be­tween May and June this year. Other mem­bers of the de­fence team are Ad­vo­cates Tu­misang Mosotho, Christo­pher Le­phuthing, ‘Mole Ku­malo, Khotso Nthon­tho and Booi Tha­bane.

Ad­vo­cate Nde­bele told the court he had three con­cerns he needed ad­dressed be­fore the Court Mar­tial pro­ceed­ings could con­tinue.

“The con­cerns we have are non-com­pli­ance of a high Court or­der (of 5 Oc­to­ber 2015) plac­ing all the ac­cused un­der open ar­rest, their treat­ment in prison, and their le­gal fees,” Ad­vo­cate Nde­bele said.

“From the be­gin­ning, there was non-com­pli­ance with the rules by the LDF. The ar­rest and de­ten­tion of the sus­pects were not in line with the rules. The high Court also or­dered the re­lease of the ac­cused to open ar­rest but our clients are still in prison.”

But be­fore he could pro­ceed, Judge Ad­vo­cate SP hancke in­ter­rupted him, ask­ing if what he was talk­ing about con­cerned the Court Mar­tial.

The ques­tion seemed to an­noy Ad­vo­cate Nde­bele, who re­torted: “This court is a crea­ture of Statute. You are bound by laws to abide by the con­sti­tu­tion and to ob­serve judge­ments of the courts of law. You’re bound first and fore­most to pro­tect the ac­cused. You can’t sit and do noth­ing when the ac­cused are per­se­cuted.”

Ad­vo­cate Nde­bele also said the jury should ask if the sol­diers were “prop­erly be­fore the court”.

he con­tin­ued: “The ac­cused are not prop­erly brought be­fore you. The in­sti­tu­tion, the LDF, did not com­ply with the high Court or­der re­leas­ing the ac­cused from de­ten­tion to open ar­rest. My in­struc­tions are if you can’t con­sider and pro­tect the rights of the ac­cused, then we can­not con­tinue be­fore this court.

“If this court is not ob­serv­ing the con­sti­tu­tion and laws of this coun­try, then it is use­less to be be­fore this court. If the LDF is en­forc­ing dis­ci­pline by hav­ing this Court Mar­tial, it’s ironic that it’s fail­ing to ob­serve the laws it­self,” said Ad­vo­cate Nde­bele.

But Maj-gen Let­soela told the lawyer that the Court Mar­tial was not the proper au­thor­ity to deal with the con­cerns he was rais­ing.

“Our opin­ion is that the high Court is the proper ju­ris­dic­tion to ap­proach for the con­cerns on non-com­pli­ance and de­ten­tion of the ac­cused,” Maj-gen Let­soela said.

“We also don’t have the pow­ers to pre­scribe how le­gal aid should be granted to your clients. how­ever, we strongly rec­om­mend to govern­ment to pay con­sid­er­able le­gal fees for the ac­cused.

“We there­fore find no sub­stance to the con­cerns of the de­fence and the Court Mar­tial should con­tinue with pro­ceed­ings.”

how­ever, Ad­vo­cate Nde­bele con­tin­ued to ar­gue his points.

“Since we left this court in Oc­to­ber, our clients were placed un­der soli­tary con­fine­ment de­spite court or­ders for their re­lease. This is the 48th day of their soli­tary con­fine­ment. Soli­tary con­fine­ment is purely pun­ish­ment for breach of dis­ci­pline in de­ten­tion cen­tres.

“They are placed un­der 24-hour soli­tary con­fine­ment and given five min­utes to eat and 15 min­utes to see their fam­i­lies. We are also only al­lowed 15 min­utes to see our clients.

“If you look at the rules, you’d find that you can only place a per­son un­der soli­tary con­fine­ment if they have been proven med­i­cally fit by a med­i­cal doc­tor, to un­dergo such pun­ish­ment. This was not done. The rules were not obeyed here.

“We can­not con­tinue if they are not re­leased from soli­tary con­fine­ment and placed un­der open ar­rest,” Ad­vo­cate Nde­bele told the court.

“What is also dis­turb­ing is that the LDF, an in­sti­tu­tion that con­tin­ues to tor­ture the ac­cused, is seek­ing jus­tice through the Court Mar­tial.

“But if the im­pris­on­ment of the ac­cused con­tin­ues, the de­fence team is not go­ing to con­tinue ap­pear­ing be­fore this court”.

Ad­vo­cate Nde­bele also said an­other con­cern was the ac­cused could not pay their le­gal fees.

“We took the ini­tia­tive to seek from the re- spon­si­ble min­istry, as­sis­tance on le­gal aid. Our let­ter was de­liv­ered on 21 Septem­ber. how­ever, the re­sponse we re­ceived only yes­ter­day was that they have taken note of the mat­ter. It would be dif­fi­cult to rep­re­sent our clients un­der th­ese cir­cum­stances as it is ex­pen­sive to be here,” said Ad­vo­cate Nde­bele.

Ad­vo­cate rasekoai also said the court had asked “a per­ti­nent ques­tion whether it has ju­ris­dic­tion over the con­cerns tabled be­fore it”.

“There is a fun­da­men­tal ba­sis; you have the ju­ris­dic­tion on the pro­pri­ety of the ac­cused ap­pear­ing be­fore this court,” he said.

Ad­vo­cate rasekoai em­pha­sised the court should re­alise that ar­gu­ments raised by the ac­cused were not just political protests but based on the law.

“The court can­not turn a blind eye to the tor­ture per­pe­trated on our clients. Im­pris­on­ment be­yond 15 days is tor­ture. We are re­ally skat­ing on thin ice here,” said Ad­vo­cate rasekoai.

Mean­while, the pros­e­cu­tion rep­re­sented by Ad­vo­cate roland Suhr, ac­cused the de­fence team of fail­ing to file their ob­jec­tions in Oc­to­ber, as agreed, and also to no­tify the court that they were not hav­ing enough time to con­sult with their clients.

he also said the Court Mar­tial was not the right fo­rum for the lawyers to lodge their com­plaints against the LDF.

“This court is not the right fo­rum for the com­plaints to be ven­ti­lated. They know that the high Court can make or­ders re­lat­ing to the de­ten­tion of the ac­cused,” said Ad­vo­cate Suhr.

The court-mar­tialed sol­diers are Bri­gadier Mareka, Bri­gadier Poqa Mo­toa, Colonel Ste­mere, Colonel Kolisang, Ma­jor Makhetha, Cap­tain Chaka, Se­cond-lieu­tenant Mo­hasi, Sergeant Mokhobo, Sergeant Se­makale, Sergeant Lekhabun­yane, Cor­po­ral Mokhoro, Cor­po­ral Let­si­lane, Cor­po­ral Lipoto, Cor­po­ral Manaka, Cor­po­ral Mo­hat­lane, Cor­po­ral Chele, Cor­po­ral Mot­seko, Lance-cor­po­ral Jobo, Lance-cor­po­ral Molefi, Lance-cor­po­ral Makhooane, Pri­vate Pama, Pri­vate Bolofo and Pri­vate ral­itlemo.

Trial con­tin­ues.

Ad­vo­cate Koili Nde­bele.

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