Lawyers lose court mar­tial chal­lenge

Lesotho Times - - News - Billy Ntaote

Act­ing Ma­jor-gen­eral Mo­jalefa Let­soela on tues­day said the court Mar­tial he is pre­sid­ing over has the ju­ris­dic­tion to hear the case of 23 Le­sotho De­fence Force (LDF) sol­diers charged with mutiny.

Act­ing Ma­jor-gen­eral Let­soela is the pres­i­dent of the court and made the rul­ing fol­low­ing heated ex­changes be­tween a team of lawyers rep­re­sent­ing the sol­diers and the pros­e­cu­tion.

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, LanceCor­po­ral Jobo, Lance-cor­po­ral Molefi, Lancecor­po­ral Makhooane, Pri­vate Pama, Pri­vate Bolofo and Pri­vate Ral­itlemo were ar­rested be­tween May and June 2015 on al­le­ga­tions that they were part of a foiled plot to topple the army com­mand.

the LDF says the al­leged plot was mas­ter­minded by slain for­mer army com­man­der Lieu­tenant-gen­eral Maa­parankoe Ma­hao. Lt-gen Ma­hao was shot dead in Mokema on 25 June last year by sol­diers who had come to ar­rest him for the al­leged mutiny.

the 23 sol­diers have since been brought be­fore a court Mar­tial, whose pro­ceed­ings re­sumed on Mon­day this week af­ter they were ad­journed on 4 De­cem­ber 2015.

On Mon­day, Pros­e­cu­tor Ad­vo­cate Roland Suhr and the de­fence team ar­gued over the court’s au­thor­ity to hear the mat­ter. the ar­gu­ments con­tin­ued the fol­low­ing day when Act­ing Ma­jor-gen­eral Let­soela dis­missed the lawyers’ ob­jec­tions.

One of the lawyers, Ad­vo­cate christo­pher Le­phuthing, had told the court that the trial could not con­tinue in the ab­sence of the SADC com­mis­sion of in­quiry re­port. the com­mis­sion, led by Jus­tice Mpa­phi Phumaphi in in­ves­ti­gat­ing Lt-gen Ma­hao’s shoot­ing and other se­cu­rity-re­lated mat­ters, touched on the mutiny charges but its re­port has not yet been made pub­lic. the govern­ment has an­nounced that it would present the re­port be­fore par­lia­ment on Mon­day next week, but the prime min­is­ter has hinted that cer­tain parts could be ex­punged in the in­ter­est of na­tional se­cu­rity.

“the court is now faced with a dilemma whether it awaits the re­port or not. this trial can­not con­tinue in this quag­mire; the re­port is rel­e­vant to this case as it dealt with this al­leged mutiny plot. We also want to know how the com­mis­sion treated ev­i­dence given by Se­nior in­spec­tor Map­ola of the Le­sotho Mounted Po­lice Ser­vice who was the in­ves­ti­ga­tor, as it deals with the al­leged mutiny,” said Ad­vo­cate Le­phuthing.

the lawyer also ar­gued that the court Mar­tial col­lapsed af­ter the LDF’S at­tempt to stop Jus­tice Phumaphi from deal­ing with the mutiny charges “was dis­missed with the con­tempt it de­served”.

“We are keen to know the com­mis­sion’s find­ings as they re­late to the ar­rests of my clients by the LDF. i ex­pect a di­rect rul­ing be­cause i won’t come here to ar­gue be­fore a court i don’t take as a court,” Ad­vo­cate Le­phuthing said.

An­other mem­ber of the de­fence team, Ad­vo­cate Kuili nde­bele, ar­gued the court didn’t have ei­ther “a sub­ject-mat­ter or per­sonal ju­ris­dic­tion” to try the ac­cused.

Ad­vo­cate nde­bele fur­ther pointed out that the ac­cused’s charge-sheet did not have “a prima fa­cie charge of mutiny”.

the charge sheet, he added, in­di­cated that se­nior of­fi­cers such as Bri­gadier Tho­riso Mareka wanted to kill their ju­niors which he ar­gued could not be called a mutiny.

“Here we see the LDF com­man­der and his com­mand charged of hav­ing planned to over­throw law­ful au­thor­ity. Against who could com­man­der Ma­hao plot a mutiny? Our hum­ble sub­mis­sion is that the charge, as sub­mit­ted, does not im­ply mutiny.

“Our sub­mis­sion is that Lt-gen Ma­hao could not plot a mutiny against him­self. And Bri­gadier Mareka and Bri­gadier Mo­toa can­not be charged with over­throw­ing their ju­niors. the real pur­pose and in­ten­tions of the ac­cused is said to have been to ar­rest and kill (LDF com­man­der) Lt-gen tlali Kamoli. How­ever, we are say­ing it was to re­move a Mosotho man, a civil­ian.

“the charge is per­fect, but maybe it should have been con­spir­acy to com­mit mur­der,” said Ad­vo­cate nde­bele.

Yet an­other de­fence lawyer, Ad­vo­cate Mon­a­heng Rasekoai, raised the ar­gu­ment of ju­ris­dic­tion when he ad­dressed the court.

“the above-cited peo­ple plead you don’t have the right to try the case as the pros­e­cu­tion didn’t come to court with clean hands be­cause of the un­law­ful man­ner of the ar­rests, un­law­ful act of tor­ture and un­law­ful act of forc­ing the ac­cused to im­pli­cate one an­other.

“We sub­mit the pros­e­cu­tion can­not be al­lowed to abuse court pro­cesses. the pros­ecu- tion of a per­son who is brought to court il­le­gally would be a dis­play of dou­ble stan­dards.

“We want to ad­duce ev­i­dence as there are claims of tor­ture and acts of tor­ture per­pe­trated on our clients. the state pros­e­cu­tion is tainted,” ar­gued Ad­vo­cate Rasekoai.

Ad­vo­cate Rasekoai added state se­cu­rity agen­cies can­not tor­ture a sus­pect, put him in the dock and ac­cuse him of a crime when they would have com­mit­ted a crime them­selves.

An­other lawyer for the ac­cused sol­diers, Ad­vo­cate tu­misang Mosotho, re­it­er­ated ar­gu­ments by his col­leagues that the com­man­der of the LDF can­not be charged with mutiny.

“the com­man­der is the sym­bol of the LDF. it’s an in­sult to say a com­man­der com­mit­ted mutiny. And if th­ese charges are pre­ferred on the ac­cused af­ter 30 Au­gust 2014, then the charges are an in­sult,” Ad­vo­cate Mosotho said, adding tor­ture at­tracts uni­ver­sal ju­ris­dic­tion for a rea­son.

“The League of Na­tions, af­ter the (first) World War, de­clared that acts of tor­ture are de­mean­ing and di­a­bolic. And this is how se­ri­ous the world takes acts of tor­ture. Even a mag­is­trate court can­not re­mand a per­son who has been tor­tured. Even the pros­e­cu­tion should de­cline to pros­e­cute where there is an al­le­ga­tion of tor­ture.

“the state should take it upon it­self to in­ves­ti­gate the tor­ture. Ev­ery­thing has to come to a stop if tor­ture is men­tioned,” Ad­vo­cate Mosotho said.

“now that the pros­e­cu­tion is aware that there has been tor­ture, it would be a sad day for a lawyer to say we should ig­nore such al­le­ga­tions.”

How­ever, Ad­vo­cate Suhr ar­gued the ju­ris­dic­tion chal­lenge should be dis­missed and di­rected the court to the court Mar­tial’s con­ven­ing or­der and also the LDF Act of 1996 Sec­tion 95.

“this is slip­pery ter­ri­tory as they are men­tion­ing per­ceived mis­con­duct. the court can’t deny it­self ju­ris­dic­tion on per­ceived mis­con­duct or claims of tor­ture. the tor­ture should be con­sid­ered at a later stage of the pro­ceed­ings,” said Ad­vo­cate Suhr.

Act­ing Ma­jor-gen­eral Let­soela then dis­missed the lawyers’ ju­ris­dic­tion chal­lenge, paving the way for the trial to con­tinue.

Act­ing Ma­jor-gen­eral Mo­jalefa Let­soela.

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