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Court Martial trial ‘unconstitutional’

LDF  Commander Lt General Tlali KomoliNat Molomo

MASERU — An argument erupted in the court martial trial of fugitive soldier, Second Lieutenant Thabang Phaila, this week with his lawyer protesting that his client’s trial was not in accordance with the constitution.

Phaila, who fled the country soon after the 1998 mutiny, is facing charges of desertion and mutiny.

He is being represented by Advocate Sakoane Sakoane KC, while Advocate Captain Bulane Sechele is prosecuting in the trial by the court martial.

Asked whether he is receiving his monthly salary as an army officer, Phaila said he never received any monthly salary, neither was he aware that he was “still being paid on a monthly basis”.

Phaila agreed with the prosecutor that as a suspect of the alleged mutiny and desertion he was being afforded a fundamental right by being subjected to a fair hearing in accordance with Section 12 of the Constitution.

The prosecutor said the fact that the accused was being represented by a senior lawyer of Advocate Sakoane’s calibre demonstrated that the soldier was being accorded fair hearing.

“What we are doing here is a fair hearing,” Sechele said.

At this point Sakoane rose and objected, protesting that the accused is not being tried in accordance with the constitution but “in accordance with the military law”.

But Sechele maintained that the accused, by virtue of being on trial is “benefiting rights accruing from the constitution”.

But the court warned both lawyers that they were getting into legalities and advised that they reserve the matter for argument.

When Sechele pointed to the accused that in his affidavit he had said he could not come home because he learnt that some of the soldiers who were on parade at Ratjomose Barracks had been arrested for mutiny, Phaila agreed that was one of the reasons for his flight into self-imposed exile.

Phaila also told the court under cross-examination that one of the reasons was that he had learnt he was number two on the list of those wanted.

He said on his return to Lesotho on September 9, last year he went with his father to the office of the Minister of the Correctional Service, Mophato Monyake.

There his father introduced him to the minister who then wrote a letter to the army commander asking that amongst others, he and his family be afforded protection.

To which Sechele said: “Upon your return you did not report yourself to the office of the Commander LDF?”

“It is correct, I did not,” Phaila replied.

Phaila further agreed that he did not report himself to the office of the Minister of Defence nor that of the Principal Secretary for Defence.

He agreed that the office of the minister is not part of the LDF and reiterated that he is a member of the LDF and “not a politician”.

Sechele then drew Phaila’s attention to the letter attached as an exhibit by the defence written by Minister Monyake to the LDF Commander.

The letter, among other things, requested LDF Commander Lt General Tlali Kamoli to afford Phaila and his family protection, and the rights and freedoms enjoyed by every citizen.

Sechele said: “At the moment are you not in military detention at the Makoanyane Barracks day and night under the guard of military police?”

“I am under that protection but I question it,” Phaila said, adding that this was not the protection Minister Monyake was talking about.

However, he agreed that he and his family members are allowed to communicate with him and can see him under the same protection.

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