THE trials of members of the national security services and politicians are back on after several months’ hiatus to allow the constitutional court to decide on the constitutionally of the state’s recruitment to preside over the high profile cases.
In the first of such cases, Zimbabwean judge Justice Charles Hungwe returned to Lesotho and on Thursday and Friday presided over two trials of murder-accused soldiers.
On Thursday, Justice Hungwe, gave Captain Litekanyo Nyakane and his co-accused until 20 June 2019 to have their lawyers, who were absent in court, present themselves failing which the accused would be allocated new lawyers by the state.
Captain Nyakane, Lance Corporal Khauhelo Makoae, Lance Corporal Sebilo Sebilo, Privates T?epo Tlakeli and Thebe T?epe stand accused of murdering Thabang Mosole, Monyane Matsie and Pakiso Ntala Letatabe in Ha Motanyane in Mafeteng in 2012.
On Thursday, Justice Hungwe ordered that in the event that their lawyers did not present themselves to the High Court Acting Registrar, Pontšo Phafoli, by Thursday, Ms Phafoli should appoint five state lawyers to represent the accused when their pre-trial conference gets underway on 6 August 2019.
“Each of the accused has up to 20 June to clarify whether their lawyers will continue to represent them and that should be done by the said lawyers approaching the registrar.
“Should that fail, the registrar should select five lawyers who will be paid by the state to represent the accused and she shall order the lawyers to take instructions from the accused in preparation of the pre-trial conference.
“If any of your lawyers decides to withdraw, they should explain the consequences of their withdrawal to you. The matter is postponed to 6 August for pre-trial conference,” Justice Hungwe ordered.
Prior to the order, Crown Counsel Advocate Naki Nku had told Before Justice Hungwe that the accused’s lawyers had a tendency of absenting themselves from court.
“The accused have been warned several times before that if their counsels continue to absent themselves they will be asked to seek state representation,” Adv Nku said.
Justice Hungwe replied by saying there would be no further postponements as the aim was to complete the trials within a reasonable time.
Captain Nyakane then told the judge that he did not find it reasonable that he had been languishing in remand prison for two years awaiting the commencement and finalisation of his trial.
“How much time is considered to be reasonable? I have spent two years coming here with my lawyer only to be told that the court was waiting for a foreign judge. Is that a reasonable time,” asked Captain Nyakane.
Justice Hungwe replied by saying that, “We are not here to debate whether two years is a reasonable time or not”.
“I am sure you know what to do if you feel it is not reasonable. You chose a lawyer who does not want to come to court. The registrar has powers to appoint a lawyer of her choice should your counsel continue in this fashion.
“In terms of the constitution of Lesotho, you have a right to a lawyer and a fair trial within a reasonable time. The same rights require that you be represented by a lawyer of your choice or one provided and paid for by the state,” Justice Hungwe said.
On Friday, another 10 soldiers appeared before the same judge who gave them the same ultimatum to either have their lawyers show up or have new ones assigned to them by the state.
The 10 soldiers are Brigadier Rapele Mphaki, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali, Private Nthatakane Motanyane, Motšoane Machai, Tieho Tikiso, Pitso Ramoepana, Liphapang Sefako and Nemase Faso.
They are accused of strangling Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing in rural Maseru on 16 May 2017 and dumping their bodies in the Mohale Dam.
They are accused of kidnapping and murdering the three men after the trio had just been released from police custody where they were detained in connection with a shooting incident that occurred at the Maseru border gate on 13 May 2017.
Justice Hungwe is the first of the foreign judges who will preside over the high profile cases involving politicians and members of the security sector. He was sworn in on 15 January 2019.
The recruitment of foreign judges stalled after former Defence and National Security minister Tšeliso Mokhosi, Lieutenant General Kamoli, and 14 others filed a Constitutional Court application to stop their recruitment.
The other 14 applicants in the constitutional suit were Major Pitso Ramoepane, Thabo Tšukulu, Mothibeli Mofolo, Mabitle Matona, Rapele Mphaki, Pitso Ramoepana, Lekhooa Moepi, Mahlele Moeletsi, Mahlomola Makhoali, Nthatakane Motanyane, Motšoane Machai, Liphapang Sefako, Nemase Faso, Tieho Tikiso and Litekanyo Nyakane.
They filed their application on 15 February 2019. They wanted the appointment of the foreign judges by the Judicial Service Commission (JSC) to be nullified on the grounds that it was unconstitutional. They argued that the JSC did not act independently as it was coerced by the government into recruiting foreign judges who would do the government’s bidding by ensuring that they are found guilty of the charges brought against them. They argued that the JSC should have been left alone to independently recruit judges.
In delivering its judgement, the Constitutional Court bench made up of Justices Thamsanqa Nomngcongo, Lebohang Molete and Moroke Mokhesi dismissed the application, saying the government acted within the constitution in seeking the assistance of foreign judges to try the cases.
The judgement cleared the way for the resumption of the recruitment of the foreign judges as well as the resumption of the high profile trials.
Lt-Gen Kamoli is accused of murdering murder of former army commander, Lt-Gen Maaparankoe Mahao in 2015.
He is accused along with Captain Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ‘Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tšitso Ramoholi.
Former National Security Services (NSS) director and head of Military Intelligence, Tumo Lekhooa, was also roped in among the accused, but he has not attended any court session on account of the fact that he fled the country last year.
Furthermore, the accused are charged with the attempted murder of Lt-Gen’s nephews, Mahao Mahao and Mabilikoe Leuta, by shooting inside a vehicle in which they were passengers.
They are also charged with damaging Lt-Gen Mahao’s vehicle during the same operation by firing at it with an automatic rifle.
Lt-Gen Kamoli is further charged with the theft of Lt-Gen Mahao’s 9mm pistol and Samsung Galaxy mobile phone.
Lt-Gen Kamoli has been in remand prison since he was arrested and detained in October 2017.
He also faces a murder charge stemming from the 30 August 2014 killing of Police Sub-Inspector, Mokheseng Ramahloko.
Sub-Inspector Ramahloko was shot and killed by soldiers during the attempted coup of 30 August 2014 at the Police Headquarters in Maseru. The soldiers who allegedly acted on the instructions of the then army commander, Lt-Gen Kamoli, also raided several other police stations in Maseru and seized an assortment of weapons.
Lt-Gen Kamoli also faces attempted murder charges in connection with the 27 January 2014 simultaneous bombings of the Moshoeshoe II homes of First Lady, ‘Maesaiah Thabane, and the Ha Abia residence of former police commissioner, Khothatso Tšooana.
In this case, Lt-Gen Kamoli is charged alongside Major Pitso Ramoepane, Captain Litekanyo Nyakane, Sergeant Heqoa Malefane and Corporal Mohlalefi Seitlheko.
Mr Mokhosi faces charges of murdering Police Constable (PC) Mokalekale Khetheng in 2016. He is charged along with former police commissioner Molahlehi Letsoepa and four other police officers.
The other officers are Senior Superintendent Thabo Tšukulu, Superintendent Mothibeli Mofolo, Inspector Mabitle Matona and Police Constable Haleokoe Taasoane who are all currently on suspension from the police service.
Mr Mokhosi is out on bail while Letsoepa is in exile.