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Court martial jury refuses to stand down

by Sunday Express
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…as soldiers’ mutiny trial is postponed to February 2016

Billy Ntaote

A Court Martial jury presiding over the on-going mutiny trial of 23 Lesotho Defence Force (LDF) members has refused to stand down after the soldiers had demanded its recusal for fear of bias.

The bench is led by Acting Major-General Mojalefa Letsoela, and had been asked to recuse itself from the case by 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, Lance-Corporal Jobo, Lance-Corporal Molefi, Lance-Corporal Makhooane, Private Pama, Private Bolofo and Private Ralitlemo.

The soldiers were arrested between May and June this year on allegations they were part of a foiled plot to topple the LDF command.

The military says the alleged plot was masterminded by former army commander Lieutenant-General Maaparankoe Mahao. Lt-Gen Mahao was shot dead in Mokema on 25 June this year by soldiers who had come to arrest him for the alleged rebellion.

However, the 23 soldiers were not happy with the composition of the Court Martial panel and last week applied for its removal citing conflict of interest.

But on Friday, Prosecutor Advocate Roland Suhr dismissed the soldiers’ claims as unfounded and lacking substance. The court’s president, Act Maj-Gen Letsoela, then postponed the case to 1 February 2016.

In his submissions seeking the panel’s recusal, a member of the defence team,  Advocate Kuili Ndebele said Acting Maj-Gen Letsoela was appointed president of the court by LDF Commander Lt-Gen Tlali Kamoli, for the sole purpose of finding the suspects guilty.

“On 10 August 2015, the then Brigadier Letsoela was promoted to Major-General to specifically sit as president of this Court Martial. Can you imagine a victim of rape appointing her own judges to a case in which she was the victim? Lt-Gen Kamoli is a victim of the alleged mutiny and so he is an interested party. Lt-Gen Kamoli appointed you (Maj-Gen Letsoela) because he has vested interest in this matter.

“There was no reason why you were promoted when there were two substantive Major-Generals who could have presided over this court.

“Your elevation is contrary to the LDF Act which says a promotion shall not be done when there is no vacancy. All the Major-Generals were present when you were promoted. My Lords, if you’re an Acting Officer, on whose behalf are you acting?

“There should be a post which is vacant, and in this case the Major-General post was not. A reasonable man would conclude that you were promoted to preside over this case to the detriment of the accused,” Advocate Ndebele told the court.

“You are acting in a non-existent post and you remain, with humble respect, a Brigadier. And being a Brigadier, you cannot, by law, be the President of the Court Martial because some of the accused in this case, outrank you.”

Advocate Ndebele also said being an Acting Major-General meant he did not have the powers of a substantive officer.

“You were called upon and appointed to sentence our clients to life imprisonment and then go back to being a Brigadier. This is against the laws, the rules and common sense, and we submit that you don’t qualify to be the President of this Court Martial,” said Advocate Ndebele.

The other reason why the suspects want the Court Martial bench removed, save for Judge Advocate Hancke, was they were allegedly present during LDF parades where the mutiny was discussed, Advocate Ndebele added.

“In his objections filed before the court, Brigadier Poqa Motoa (one of the suspects) says Maj-Gen Letsoela was present when the LDF commander talked about the mutiny during meetings and parades.

“You’re interested parties as you have been involved from the onset in the case. As a result, we are objecting to your appointments to preside over this Court Martial.

“We also have junior officers sitting as judges in a case involving their seniors.

“If you bring a junior to discipline a senior, it undermines the LDF Act of 1996 and even discipline and the country’s constitution. There is no way juniors could be called to send their seniors to prison. And Section 187 of the Act also clearly says seniors can’t be arrested by their juniors as happened in this case.

“Even this very court is an integral part of the military that is established in terms of the law. And this court must respect hierarchy and discipline and the structures of the LDF. Our humble submission is that you have to respect the structures as a court.

“This court does not have jurisdiction to sit and try this case. And all members of the panel are not supposed to be sitting as judges of this court,” Advocate Ndebele said.

Another defence lawyer, Advocate Khotso Nthontho supported Advocate Ndebele’s submissions, adding: “Lt-Gen Kamoli is invariably the complainant. There is a letter of appointment for the President by Lt-Gen Kamoli. We can’t shy aware from the fact that he has vested interest in this matter.

“Lt-Gen Kamoli is a victim as he supposedly appears on the list of people to be killed and removed from the command of the LDF by the alleged mutineers.

“Our clients believe the President would not be impartial to the proceedings. This brews fertile ground for the president’s recusal.”

Advocate Nthontho also told the court the whole bench had submitted affidavits supporting Acting Maj-Gen Letsoela’s arguments against his recusal.

Advocate Nthontho noted Maj-Gen Letsoela mentions in his affidavit that the accused’s demands for recusal were tantamount to “knocking on the door of undermining rank and personal being”.

The lawyer continued: “It is clear Maj-Gen Letsoela perceives Colonel (Naha) Kolisang to be insubordinate in his argument for his recusal. The president has taken this as a personal affliction by Colonel Kolisang. We can’t expect the president to be impartial when he exhibits such behaviour.

“We believe the president would not be impartial in this Court Martial and  should recuse himself.”

On his part, Advocate ‘Mole Kumalo said a member of the Court Martial panel (Lt-Col Mofoka who was a Major until his recent promotion) was one of the targets of the alleged mutiny.

“Yes, he is a Lieutenant-Colonel now, but he is still Mofoka. According to one of the holding charge sheets, at some point, he was among the people to be killed by the accused. He is clearly conflicted and cannot be part of this Court Martial,” said Advocate Kumalo.

However, Advocate Suhr countered the lawyers’ arguments, insisting in terms of Section 93 of the LDF Act of 1996, it was clear who may be on a Court Martial panel.

“My submission is that ranks below Captain are the ones barred from being on the Court Martial panel, but this requirement has been met in terms of the law,” Advocate Suhr pointed out.

He also told the court the defence was wrong about who appointed the Court Martial president.

“It was not the Commander who appointed the Major-General; it was the Minister of Defence in terms of the convening order,” said Advocate Suhr.

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