Brigadier Thoso Mareka will remain out of detention after the Court of Appeal on Friday confirmed a High Court judgment that placed him under open arrest.
The brigadier is one of several members of the Lesotho Defence Force (LDF) arrested by the army between 14 May and 25 June this year for allegedly plotting a mutiny.
He was arrested on 5 June and detained at Maseru Maximum Security Prison.
His wife, ‘Mathabo, on 8 June filed an urgent application in the High Court seeking an order directing LDF Commander Lieutenant General Tlali Kamoli and Military Intelligence (MI) Director Lieutenant Colonel Tumo Lekhooa to bring Brigadier Mareka before court to confirm that he was alive.
After the order was granted, the LDF brought Brigadier Mareka before Justice Teboho Moiloa where the judge asked after his health.
Brigadier Mareka told the court he was not feeling well because of the ill-treatment he was receiving from his LDF guards.
The officer also told the court he was under medication and had a problem with his vision.
Mrs Mareka had also asked the court to release her husband from detention due to his health problem and put him under open arrest instead.
However, Lt Gen Kamoli, Col Lekhooa, Defence Minister Ts?eliso Mokhosi and Attorney General Ts?okolo Makhethe appealed the judgment on the grounds the powers to decide where LDF prisoners should be kept rested with the army command.
They contended the judge erred as he did not have the jurisdiction to handle the matter.
However, the Court of Appeal on Friday said the High Court was correct in its 8 July ruling, which means Brigadier Mareka would remain under open arrest until the finalization of his case.
Open arrest is described as “a state in which a person is considered to be in custody and his/her movements are restricted, but is allowed to go about his/her normal daily business. House arrest, on the other hand, is when a person is confined by the authorities to a certain residence, and travel is usually restricted, if allowed at all.
Part of the Court of Appeal judgment reads: “The learned judge in the court a quo analysed Mrs Mareka’s affidavit evidence.
“He gained further understanding of Brigadier’s health condition and was satisfied that he was of poor health; a fact this appellate court cannot disturb.
“We are mindful that every nation has a right to protect itself from those that may be bent on its destruction.
“In so doing, members of the security forces are faced with an extraordinary situation which must be dealt with proportionately.
“However, it must be stated that in the Commonwealth family, of which the Kingdom of Lesotho is an active member, and Lesotho being a constitutional democracy, the principle of constitutionalism is indispensable.
“The executive may exercise no power and perform no function beyond that conferred upon it by law.
“It is trite that arbitrariness is inconsistent with legality.
“Although the Crown suggested that it was not competent for the High Court to place a member of the LDF under open arrest, the effect of the court finding the close arrest as having been contrary to Regulation 10 (of the Lesotho Defence Force Regulations) had the result of converting the arrest of Brigadier Mareka into an open arrest.
“I would, therefore, not make any specific order in respect of the condition imposed by the court a quo.
“The court will be inclined to lean towards liberty, which in this case is ‘open arrest’ unless cogent reasons are given to reverse the position.
“The court acknowledges the concept of ‘minimum curial intervention’, meaning minimal intervention by the courts in the exercise of discretion by public functionaries.
“Our concluding paragraph epitomizes the sanctity of that concept.
“In the result, the following order is made: The appeal is dismissed with costs; The appellants shall pay costs of one attorney and two advocates, to be taxed in default of agreement.”
The case was heard by Justices Phillip Musonda, Hungwe Chinhengo and Tileinge Damaseb.
Mrs Mareka was represented by Advocate Christopher Lephuthing and Advocate Monate, while the appellants were represented by Advocate Mafefooane Moshoeshoe from the Attorney General’s chambers.