Court rules in favour of de­tained sol­dier

Lesotho Times - - News - Billy Ntaote

HIGH Court judge, Jus­tice Semapo Peete (pic­tured) yes­ter­day ruled that charges pre­ferred against Cor­po­ral Montsuoe Mot­seko by the Le­sotho De­fence Force (LDF), were un­law­ful.

Cor­po­ral Mot­seko is be­ing de­tained at the Maseru Max­i­mum Se­cu­rity Prison for “false” state­ments he al­legedly made in the High Court against Ma­jor Sechele Bu­lane and Lieu­tenant-colonel Thato Phaila.

By mak­ing the state­ments against the of­fi­cers on 27 July 2015, Cor­po­ral Mot­seko “con­tra­vened Sec­tion 78 (b) of the LDF Act”, his charge sheet reads.

For this in­dict­ment, Cor­po­ral Mot­seko is sup­posed to ap­pear be­fore the Court Mar­tial on 28 De­cem­ber 2015.

How­ever, Jus­tice Peete yes­ter­day told LDF lawyer Ad­vo­cate Le­holi Motikoe that he should, by 3:30pm to­day, fur­nish the court with the army’s de­ci­sion on whether the Court Mar­tial hear­ing would pro­ceed.

In his ur­gent ap­pli­ca­tion filed be­fore the High Court on Tues­day this week, Cor­po­ral Mot­seko had prayed that his de­ten­tion be de­clared un­law­ful “ab ini­tio”.

Cor­po­ral Mot­seko also wanted charges pre­ferred against him on 9 De­cem­ber 2015 to be set aside, ar­gu­ing they amounted to “dou­ble jeop­ardy” as he had al­ready been slapped with sim­i­lar charges on 4 Au­gust 2015.

His lawyer, Ad­vo­cate Tu­misang Mosotho, who filed the ap­pli­ca­tion, also wanted the court to or­der the LDF to un­con­di­tion­ally re­lease Cor­po­ral Mot­seko and never in­ter­fere with his “right to lib­erty”.

Ac­cord­ing to court pa­pers, Cor­po­ral Mot­seko was charged with mak­ing false state­ments against Ma­jor Bu­lane and Lt-col Phaila whilst in de­ten­tion on 4 Au­gust 2015.

“In mak­ing a com­plaint be­fore the High Court of Le­sotho re­lat­ing to his de­ten­tion in the Mil­i­tary De­ten­tion Cen­tre (Maseru Max­i­mum Prison), he know­ingly and falsely stated, in his found­ing af­fi­davit un­der Para­graph 12 thereof, that Ma­jor Sechele said ‘…I should not bother wast­ing money on lawyers and if I could be co­op­er­a­tive and tes­tify against a few in­di­vid­u­als like Ma­hao and Mo­toa, they will never touch me again. I gave him my word that I would do as he or­dered’.

“Fur­ther­more, he know­ingly and falsely stated, in the same found­ing af­fi­davit un­der para­graph 16 thereof, that Lt-col Phaila said ‘…I de­nied my­self a golden op­por­tu­nity by re­fus­ing to im­pli­cate other sol­diers on the al­leged mutiny’”, read the charges.

Cor­po­ral Mot­seko was ini­tially ar­rested on 25 June this year but later re­leased al­legedly af­ter agree­ing to im­pli­cate the now late for­mer army com­man­der, Maa­parankoe Ma­hao and Bri­gadier Poqa Mo­toa, in a foiled mutiny.

How­ever, he was re­ar­rested af­ter he al­legedly re­vealed he only agreed to in­crim­i­nate the duo af­ter be­ing promised amnesty and also be­cause he feared be­ing tor­tured while in de­ten­tion.

He had been among 23 sol­diers ar­rested and de­tained be­tween May and June this year for al­legedly plot­ting to over­throw the army com­mand.

The sol­diers are fac­ing trial by a Court Mar­tial and their case con­tin­ues on 1 Fe­bru­ary 2016.

Yes­ter­day, Jus­tice Peete ruled that a Court Mar­tial is part of the ju­di­ciary and an af­fi­davit is ev­i­dence and can­not be crim­i­nalised.

Jus­tice Peete asked thehe lawyers whether one could be charged­harged for giv­ing ev­i­dence un­der oath. th.

The judge also ex­presseded sur­prise that Cor­po­ral Mot­seko was be­ing charged for an of­fence hee al­legedly com­mit­ted in the High Court. ourt.

“So the of­fense was co­mom­mit­ted in the High Court and be­fore the High Court as per the charge sheet?

“You should re­mem­ber ju­di­cial priv­i­leges. State­ments made dur­ing pro­ceed­ings of the High Court are priv­i­leged. A charge un­der Sec­tion 78 of the LDF Act of 1996 would not stand on the face of ju­di­cial priv­i­leges.

“Go and ad­vice your clients on ju­di­cial priv­i­leges, which cov­ered Cor­po­ral Mot­seko when he made the state­ment in the High Court. So the con­cept of ju­di­cial priv­i­lege in­val­i­dates a charge un­der Sec­tion 78. You are duty-bound to ad­vice the Court Mar­tial pros­e­cu­tion on ju­di­cial priv­i­leges,” said Jus­tice Peete.

“In view of the law, the state- ments were not made ex­tra-ju­di­ciary. The charges against Cor­po­ral Mot­seko can­not stand so you should go and ad­vice the LDF and by to­mor­row af­ter­noon at about 15:30hrs, you should ap­pear be­fore this court with the de­ci­sion taken by the mil­i­tary on this rul­ing.”

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