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Date set for court martial challenge


Brigadier Motoa,Tefo Tefo

HIGH Court judge, Justice Molefi Makara, has set 16 September 2015 as the date on which to hear a case in which 23 detained soldiers accused of planning to topple the Lesotho Defence Force (LDF) command are seeking release and permanent immunity from prosecution.

The detained soldiers filed an urgent application before the High Court on Tuesday arguing that the court martial proceedings against them were unlawful and in flagrance of the Southern African Development Community’s (SADC) decision to put it on hold until the commission of inquiry has concluded its probe.

The soldiers are remanded at Maseru Maximum Security Prison, save for Brigadier Thoso Mareka who is under house arrest, include Brigadier 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.

They were arrested by other members of the LDF between May and June this year.

The soldiers have cited LDF commander, Lieutenant General Tlali Kamoli, Defence and National Security Minister, Tšeliso Mokhosi, Court Martial, President – Court Martial, Major General Mojalefa Letsoela, Chairman of the Commission of Enquiry Justice Mpaphi Phumaphi, the SADC Commission of Inquiry and Attorney General Tšokolo Makhethe as first to eighth respondents respectively.

The lawyers representing the soldiers and the respondents on Tuesday met in Justice Makara’s chambers to chart a road-map towards the hearing of the case.

One of the lawyers representing the soldiers, Advocate Koili Ndebele on Friday confirmed the development to the Sunday Express.

“The case will be heard on the 16th of this month and the road-map has also been drawn and it was directed that the respondents should have filed the answering papers by Tuesday, while we should have filed our replying papers by Thursday,” he said.

“We are further expected to file our heads of argument by next Monday (14 September, 2015), and the respondents should file their heads of argument by Tuesday (15 September, 2015).”

In their application, the army officers seek an order that: “The 2nd respondent’s (Minister Mokhosi) decision to establish court martial to try the applicants for alleged contravention of sections 48 (1) (a) read with sections 48 (2)and 103(1) of Lesotho Defence Force Act 1996, be reviewed and set aside.

“The 2nd respondent’s convening order for establishing Court Martial to try the applicants for alleged contravention of sections 48 (1) (a) read with sections 48 (2) and 103(1) of Lesotho Defence Force Act 1996, be declared as null and void.”

The Court Martial was assembled by Mr Mokhosi through a “convening order” he issued on 13 August 2015.

The detained soldiers also seek an order that: “The respondents’ decision to charge the applicants pursuant to the charge sheet issued on the 7th August 2015 be reviewed and set aside.

They want the High Court to prevent LDF authorities from charging them for the alleged offences until the SADC Commission of Inquiry completes its mandate.

The army officers also want the court to order their unconditional release from the Maseru Maximum Security Prison.

“It be and is hereby declared that pending the outcome of the Commission of Inquiry, the applicants are free from prosecution and are entitled to have their freedoms and liberties, and are entitled to an unconditional release from both close and open arrest,” read part of the notice of motion.

In the alternative, they want the 1st respondent’s (Lt Gen Kamoli) directive issued on the 10th July 2015 pursuant to terms of Regulation 11 (2) of the Defence Force (Discipline) Regulations No. 29 of 1998 to be declared null and void.

The directive was extending their stay in detention until the convening of the Court Martial.

In persuading the court to deal with their case with haste, one of their lawyers, Advocate Christopher Lephuthing, attached a certificate of urgency in the application.

In his certificate of urgency, Advocate Lephuthing states: “The applicants have been arrested and remain detained at the Maximum Security Prison by members of the Lesotho Defence Force under close arrest in the absence of exceptional circumstances and jurisdictional facts which legalise such assumed close arrest.

“The applicants – save for 1st applicant (Brigadier Thoriso Mareka) – are in an invidious position of remaining under close arrest without due process of the law and submits that their fundamental rights to a fair trial will be violated if the detention is allowed to continue pending investigations of the Commission of Inquiry envisaged in the government gazette of the 21st August 2015.”

Brigadier Mareka is under open arrest after the Court of Appeal on 7 August 2015 confirmed the High Court decision which ruled that he should be kept out of prison due to ill-health.

In support of the application, Brigadier Mareka made an affidavit, part of which reads: “It is necessary to indicate at first blush, the death of (Brigadier Maaparankoe) Mahao raised principal concern with regard to security in the kingdom to such an extent that an Extra-Ordinary Double Troika Summit was convened at (sic) Pretoria, South Africa on the 3rd July 2015.

“It was in that summit where the Lesotho government undertook not to proceed with the arrest and detentions of the members of the Lesotho Defence Force pending equitable measures designed to avoid irreparable harm so that the rule of law may take its course by way of the orderly determination of issues through the independent SADC Commission of Inquiry.”

He said the summit resolved that Lesotho should “put on hold the Court Martial processes to allow for the independent SADC Commission of Inquiry as set out in the terms of reference tasked to launch the investigations into the alleged mutiny plot and alleged kidnapping of members of the Lesotho Defence Force.”

Brigadier Mareka also said his lawyers had already written a letter to the head of SADC’s Commission of Inquiry into Lesotho’s instability, Justice Mpathi Phumaphi, querying the convening of the Court Martial while the commission was also proceeding with its enquiry.

“It is my viewpoint that Minister of Defence, Hon Tšeliso Mokhosi has no jurisdictional fact for exercising powers entrusted on him to set up the Court Martial under the present circumstances traversed in the letter above,” Brigadier Mareka said.

Five lawyers representing the army officers wrote a letter to Justice Phumaphi last Friday expressing concern over the envisaged court martial proceedings against their clients. In their communiqué, they expressed fears that the commission’s findings risked being invalidated should the court martial proceedings continue.

The respondents are represented by Advocate Motiea Teele (King’s Counsel).

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