…as new disclosure regime set to reshape criminal trials
Moroke Sekoboto
THE Law Society of Lesotho and the Judiciary have joined forces to capacitate legal practitioners on the new Criminal Litigation Rules 2026, which introduce significant changes to the conduct of criminal trials, including mandatory pre-trial defence disclosures
The new rules require accused persons to disclose their intended defence before trial and empower courts to draw adverse inferences where they fail to comply with those obligations.
The changes mark a significant departure from the traditional position in Lesotho, where an accused could remain silent until trial, leaving the prosecution to prove every element of the charge and only revealing the defence after close of prosecution’s case.
High Court Justices Charles Hungwe, Dr Itumeleng Shale and Justice Molefi Makara, presented on different aspects of the new rules during a workshop held at the Lehakoe Recreational and Cultural Centre on Friday.
Justice Hungwe dealt with adverse inferences arising from failures to comply with defence disclosure requirements, while Justice Shale addressed plea-bargaining agreements and Justice Makara examined the interpretation and accommodation of alternative justice interventions.
Justice Hungwe said Rule 78 of the Criminal Litigation Rules, contained in Legal Notice 22 of 2026 gazetted in July this year, introduced a provision that was likely to be heavily litigated.
“Rule 78 of the Criminal Litigation Rules, Legal Notice 22 of 2026, introduces into the Lesotho criminal justice system a provision that will be litigated. Every criminal practitioner in this jurisdiction will, within the coming year, either be drafting defence statements under Rule 76, applying for adverse inferences under Rule 78, resisting them, or arguing about the constitutionality of the entire scheme,” he said.
Justice Hungwe said the rules were built around three pillars: the obligation to disclose under Rule 76, the sanction of adverse inferences under Rule 78, and constitutional safeguards developed through regional and comparative jurisprudence.
“Until the commencement of the Criminal Litigation Rules 2026, the settled understanding in Lesotho was that an accused person could arrive at trial disclosing nothing, put the Crown to the proof of every element, and reveal the defence — if there was one — only when the defence case opened,” he said.
“Compelling an accused to disclose a defence in advance, on pain of adverse consequences, was widely assumed to violate section 12 of the Constitution.”
However, he said the new rules had changed that position.
“Rule 76 obliges the accused, once the prosecution has complied with its own disclosure obligations, to give a defence statement to the prosecutor and to the court three court days before trial,” Justice Hungwe said.
He explained that the statement must set out, in general terms, the nature of the defence, identify the matters disputed by the accused and give reasons for those disputes.
Where the defence has an alibi, particulars must also be provided, together with a schedule of defence witnesses and exhibits as required by Rule 76(5).
Rule 78, he said, provides the consequences of failing to comply.
“Where the accused fails to give a defence statement, advances at trial a defence different from the one disclosed, or adduces evidence in support of a defence without having given particulars of it, the court may draw such adverse inferences as appear proper in deciding to reject the defence,” he said.
Justice Hungwe said the new framework raised three fundamental questions: the obligation imposed on the accused, the safeguards protecting the accused, and the sanctions that could follow non-compliance.
“The obligation — what exactly does Rule 76 compel the accused to disclose, and what does it not compel? Is the duty avoidable? What is counsel's position where the client declines to comply?
“The sanction — what may the court lawfully do when the accused defaults? Is the Rule 78 inference the only consequence, or may the court reach for others — contempt, exclusion of the defence, punishment of the practitioner?.
“The safeguards — what conditions must be satisfied before an adverse inference is constitutionally sound? This is the territory of Sexius, Murray v United Kingdom and S v Thebus, expressed in the six principles.”
He said the three questions corresponded with the three stages at which practitioners would encounter the new regime: when the defence statement was being prepared, when a default had occurred and the prosecution sought consequences, and when an adverse inference was being argued, drawn or challenged on appeal.
“The three questions map onto the three moments at which a practitioner meets the scheme: when the defence statement falls to be drafted (obligation); when default has occurred and the prosecution seeks its consequence (sanction); and when the inference is being argued, drawn, or attacked on appeal (safeguards),” Justice Hungwe said.
He said comparative jurisprudence from Zimbabwe and South Africa would also assist practitioners and courts in navigating the new framework.
Meanwhile, Law Society of Lesotho President, Advocate Lintle Tuke, welcomed the collaboration between the Judiciary and the Law Society, saying lawyers had previously been trained on the Civil Litigation Rules following their introduction, and that it’s good that the same has now been done to the criminal aspect.
“We are grateful for yet another successful collaboration between the Law Society and the Judiciary, because we are not merely neighbours in the administration of justice, but partners married to a cause incapable of divorce,” Adv Tuke said.
“We trained lawyers on the Civil Litigation Rules at Avani shortly after their advent. This Law Society is not, and has never been scared to spend tons of money on its members, despite criticisms from the uninitiated detractors.”
Adv Tuke described the new rules as an important step towards modernising the country's criminal justice system.
“Now to the rules, they strike me as a tool not only to modernise our criminal procedure but also to decolonise our entire criminal justice system,” he said.
“I have witnessed defence lawyers and prosecutors fighting each other in court and outside. The fight has never been between us, but against a system transplanted into our land, which system hates you as much as it hates me. These rules are the first sign of victory against the colonial grip on our justice system.”
However, he said the success of the new framework would ultimately depend on lawyers themselves.
“I agree with Adv Duma Boko (President of Botswana)'s sentiments that lawyers are ministers in the temple of justice. But many times, I have observed this noble ministry being sacrificed at the capitalist altar of money and personal gain. Many of you here are guilty,” Adv Tuke said.
“Let us go back to justice and stop weaponizing the law to run from justice.”
He also thanked the judges who participated in the training, including Justices Mabatšoeneng Hlaele and Mafelile Ralebese of the Central Division of the High Court.
Adv Tuke said the workshop provided lawyers with an opportunity to engage judges intellectually outside the pressures of courtroom proceedings.
“Lawyers are especially scared of judges in court, but in platforms of this nature, we are free to engage, without any apparent fear, in meaningful intellectual intercourse without the pressure of persuading for a court order.
“Lawyers came from the North, South and Central regions to honour and make today a resounding success. You came prepared to learn and unlearn. To engage and to conquer,” he said.