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Foreign judge resigns

by Sunday Express
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…cites frustration with behaviour of criminal suspects who cause trials to be frequently postponed.

Pascalinah Kabi/Mohalenyane Phakela

ONE of three foreign judges recruited to preside over high-profile criminal cases has resigned.

Justice Kabelo Lebotse has resigned over the “frustrating” conduct of some of the criminal suspects he is supposed to try, who have been causing frequent postponements of their trials.
The judge’s frustration and decision to quit is disclosed in papers filed at the High Court this week by the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, in opposition to the latest bid by top politicians, Mothetjoa Metsing and Selibe Mochoboroane, to forestall the start of their criminal trials.

Adv Motinyane discloses that Justice Lebotse is fed up by the conduct of suspects who often employ delaying tactics to stop the state from proceeding with criminal trials. She however does not disclose when the judge exactly resigned. But she says the resignation is ample proof that an effective criminal justice system cannot be run on the whims and caprices of suspects. It will regress the delivery of justice.

Messrs Metsing and Selibe Mochoboroane wants their treason trial put on hold until the completion of the multi-sector reforms process in line with an earlier agreement with the then government of ex-premier Thomas Thabane. They have also asked for another postponement to give the new coalition of premier Majoro to mull the issue of their prosecution. But Adv Motinyane is having none of it. She wants the trial to proceed, citing Justice Lebotse’s resignation as a reason why it should not be business as usual for criminal suspects in terms of delaying their trials.

She argues the judge’s resignation will further hamper the delivery of justice in the high-profile trials of mainly politicians and soldiers accused of perpetrating atrocities during the previous coalition of ex-premier Pakalitha Mosisili.

“The fact that the criminal trials to which the applicants (Messrs Metsing and Mochoboroane) resist to be joined ( treason trial of ex-army boss commander Tlali Kamoli) have been postponed for one reason or the other is so serious to an extent that one of judges is resigning out of frustrating conduct of delaying tactics,” Adv Motanyane states in her court papers this week.
Mr Metsing is a former deputy prime minister and leads the Lesotho Congress for Democracy (LCD) while Mr Mochoboroane leads the Movement for Economic Change (MEC). He has just assumed a new post as Development Planning minister in the new Moeketsi Majoro led coalition.

The duo is accused of treason against the first government of former Prime Minister Thomas Thabane. The charges stem from the 30 August 2014 attempted coup against Mr Thabane’s government wherein Mr Metsing had served as deputy prime minister and Mr Mochoboroane as communications minister.

They have been charged alongside alongside Lt-Gen Kamoli and an army officer, Captain Litekanyo Nyakane.

The treason trial failed to take off in the High Court on 25 February 2020 after Messrs Metsing and Mochoboroane filed a Constitutional Court application for an order barring Adv Motinyane from prosecuting them because of the October 2018 agreement between the former Thabane-led government and the opposition halting any trials of politicians until after the completion of the reforms.

Clause 10 of that agreement states that “Mr Metsing and similarly placed persons in exile will not be subjected to any pending criminal proceedings during the dialogue and reforms process”.
The Constitutional Court has previously outlawed this particular clause 10 after the late police constable Mokalekale Khetheng’s father, Thabo Khetheng, petitioned the court to declare it unconstitutional saying self-serving agreements between politicians could not outstrip the constitution. PC Khetheng was killed by fellow police officers on 26 March 2016.

But Messrs Metsing and Mochoboroane petitioned the same court on 25 February 2020 to rescind its 22 November 2018 judgement outlawing Clause 10.

They now want the court to postpone that application to give the new government an opportunity to order Adv Motinyane to stop their trial in line with a recent directive by SADC to ex-Prime Minister Thabane.

Retired South African Judge Dikgang Moseneke, who leads SADC’s facilitation in Lesotho on behalf of South African President Cyril Ramaphosa, wrote to Mr Thabane in March 2020 informing him that the trial should be stopped in line with the 2018 agreement to defer criminal trials until after the implementation of the multi-sector reforms.

In his court papers filed for the postponement of their constitutional case, Mr Mochoboroane says the government wants to consult before making a final decision on whether or not the treason trial must proceed. He argues that this does not interfere with the DPP’s independence as she is only a lawyer acting on behalf of the state and as such the state has a right to give her fresh instructions pertaining to any case.

He further argues that Lesotho has an obligation to implement SADC-brokered agreements like the 2018 government-opposition agreement to stop all trials of politicians. He says “Lesotho cannot invoke its own municipal law to avoid its international obligations”.

But in her opposing papers, DPP Motinyane insists that the trail should go ahead without further delay. She insists that the judiciary is independent of the executive. Her office is also independent from the executive in the discharge of its functions. It is therefore “unacceptable” for Messrs Metsing and Mochoboroane or the executive to interfere with the decision to charge the duo.

She states the delaying tactics employed by the duo and other suspects in other cases have resulted in Justice Lebotse’s decision to quit.
Justice Lebotse was recruited by the government last year alongside his countryman Justice Onkemetse Tshosa and Zimbabwean Justice Charles Hungwe to try some of the cases of the high-profile suspects.

Among others, Justice Lebotse was assigned the case of former Defence and National Security Minister Tšeliso Mokhosi and others who are accused of the March 2016 murder of Police Constable Mokalekale Khetheng.

He was also assigned to try Lt-Gen Kamoli’s bodyguards over the May 2014 murder of Lisebo Tang as well as that of 10 soldiers who are accused of murdering three civilians in Maseru on 16 May 2017.

Justice Lebotse has previously expressed frustration over the behavior of the accused soldiers and their lawyers. At one point in March 2020, he even summoned prominent lawyers such as Advocate Motiea Teele, Napo Mafaesa and Attorney Qhalehang Letsika and warned them that he would have them jailed for disrespecting the court through their no-show proceedings.

His resignation is a clear setback for ensuring the delivery of justice. Many suspects, particularly the soldiers, have routinely sought delays of their trials in the hope that a change of government would enable them to escape justice. However, it is unlikely that the new Moeketsi Majoro government would grant them any such leeway as the ABC was on the receiving end of their atrocities.

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