Bongiwe Zihlangu
MASERU — Former Lesotho Defence Force (LDF) commander Major General Metsing Lekhanya said the Military Police (MP)’s month-long detention of fugitive soldier Thabang Phaila “is illegal”.
Phaila, an LDF member who was allegedly instrumental in the mutiny linked to the violent of 1998 political riots, was detained by the MP on or about October 5 after
15 years on the run and remains in custody.
However, Lekhanya said in an interview with the Sunday Express this week that Phaila should have been released within 48 hours of incarceration, as neither the military nor the police have the right to “detain anyone for more than 48 hours”.
“For one to be in detention for a month without being charged is illegal. The army has no legal standing to hold Phaila for so long. Even the police can’t hold any person for more than 48 hours without charging them,” Lekhanya said.
On the question of the nature of charges likely to be brought against Phaila, taking into consideration that his co-accomplices have already served their prison terms, Lekhanya said the soldier could be charged with neither mutiny nor sedition “because there’s a prescribed period for such charges to stand”.
“In Phaila’s case, the proscribed period for the military to lay either a charge of sedition or mutiny has lapsed. I guess he can only be charged for desertion or for Absence Without Leave (AWOL),” Lekhanya said.
In military terms, a soldier who is AWOL for 30 days or more is administratively classified as a deserter.
A military person has committed the crime of desertion if he/she is AWOL and intends to remain away from the military permanently.
According to Lekhanya, if either a charge of mutiny or sedition were to be brought against Phaila “it would only be influenced by a vendetta”.
“If he has a strong legal team, the charges might not stick. But if he doesn’t he will do jail time,” Lekhanya said.
Soldiers who were convicted for the 1998 disturbances served sentences between 15 and 20 years, some of which were reduced upon mitigation.
However, army spokesperson Major Ntlele Ntoi, told this paper this week that Phaila will be charged with mutiny and desertion, both of which warrant
sentences of 20 years and five years respectively.
Although section 32 (1) of the Criminal Procedure and Evidence Act 1981 requires any accused person to be charged within 48 hours of arrest, Ntoi said the Lesotho Defence Force Act 1996 allows for the incarceration of military personnel
for a longer period if circumstances demand it.
He referred to Section 89 (2) of the Act which states that “whenever any person subject to this Act, having been taken into military custody, remains under arrest for longer than 14 days without a court martial for his trial being assembled, a special report on the necessity for further delay shall be made by his commanding officer to the commander of the defence force in the prescribed manner.”
“If convicted, he could serve the sentences concurrently or have them reduced in mitigation,” Ntoi said.