• as prominent lawyer launches fresh bid to oust foreign judge

Mohalenyane Phakela

THE high-profile criminal trials of politicians and serving and former members of the security agencies are in limbo due to spirited efforts by some accused soldiers and their lawyers to get rid of foreign judges assigned to their cases.

Prominent lawyer Advocate Zwelakhe Mda is the latest to demand the recusal of a foreign judge from trying one of his clients. Last week Adv Mda wrote to the Judicial Service Commission (JSC) questioning the Botswana Judge Justice Onkemetse Tshosa’s suitability to preside over his clients’ trials allegedly because he has a criminal record.

He followed up on this on Wednesday by filing an application for Justice Tshosa to recuse himself from trying one of his clients, Lance Corporal Sebilo Sebilo, for allegedly murdering three civilians in Mafeteng in 2012. Justice Tshosa said he will decide on 21 September 2020 on whether or not to recuse himself.

Should he succeed, the JSC would have to go back to the drawing board and recruit new judges as all three foreign judges recruited so far either have either resigned or have pending recusal cases filed against them.

Justice Tshosa is one of three foreign judges recruited in August 2019 by the JSC to preside over the high-profile trials on the grounds that the cases were highly sensitive and foreign judges were the best hope of removing any suspicions of bias and ensuring universally acceptable verdicts.

The other two who were recruited are fellow Botswana Judge Kabelo Lebotse and Zimbabwean Charles Hungwe.

But they have not been able to cover much ground in the various cases which include murder and treason due to repeated efforts by the suspects who include former army commander Tlali Kamoli to stall the trials. It is widely believed that the suspects want to delay the trials as long as possible in the hope that the government will collapse and make way for a new one that is amenable to them. When that happens, their trials will be permanently stopped.

Justice Lebotse resigned in May this year with the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, saying he was fed up by the conduct of suspects who often employed delaying tactics to stop the state from proceeding with criminal trials.

There is also a pending Court of Appeal application for the recusal of Justice Hungwe which will be heard next month. Lieutenant General Tlali Kamoli and his co-accused soldiers want Justice Hungwe recused allegedly because he has already pre-judged them even before their trial for the June 2015 murder of former army commander Lt-Gen Maaparankoe Mahao begins.

And in the latest turn of events, Adv Mda has now written to the JSC questioning Justice Tshosa’s suitability to preside over his clients’ trials allegedly because he has criminal record.

Adv Mda wants the JSC to launch investigations into the alleged conviction of Justice Tshosa in Botswana in 2012 for assaulting a police officer and subsequently resigning as a Botswana High Court judge to avoid impeachment.

“My attention has recently been drawn to the online media reports relating to Justice Tshosa, whose veracity I have not been able to establish.  But this is serious enough to warrant investigations by the relevant stakeholders as a matter of extreme urgency,” Adv Mda states in his letter to the JSC last week.

“That during or about June 2012, Justice Tshosa was convicted by the Botswana Magistrates’ Court for assaulting a police officer and failing to provide a breath specimen after being involved in a car accident in 2009. During or about July 2012 he was given 18 months wholly suspended (prison) sentence and a fine of P1000 (M1500). At the time, Justice Tshosa was a Botswana judge.

“It is further alleged that (then) President Ian Khama appointed a tribunal to investigate whether or not Justice Tshosa should not be removed from serving as a judge. However, in about August 2012 Justice Tshosa delivered his resignation to President Khama – on the day that the tribunal was due to sit.”

Adv Mda argues that it a fair trial can only be guaranteed by having a judge who has always exhibited high standards of behaviour within and outside the courtroom.

“A judge must ensure that his or her conduct, in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and the judiciary. A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer.

“The JSC is constitutionally obligated to recommend for appointment as judge, a candidate with proven track record of moral restitute and is a fit and proper person to be appointed to the high judicial office as a judge. As a corollary, a person with a serious criminal record cannot be appointed as a judge in the Kingdom of Lesotho,” Adv Mda argues.

In addition to petitioning the JSC, Adv Mda on Wednesday appealed to Justice Tshosa to recuse himself from trying one of his clients, Lance Corporal Sebilo Sebilo, for allegedly murdering three civilians in Mafeteng in 2012.

Lance Corporal Sebilo is charged alongside Captain Litekanyo Nyakane, Lance Corporal Khauhelo Makoae, Privates Tšepo Tlakeli and Thebe Tšepe.

Justice Tshosa said he will deliver ruling on his recusal on 21 September 2020.

Should Adv Mda have his way and the apex court also rules against Justice Hungwe, then it will back to the drawing board as there will be no more foreign judges to preside over the high-profile trials.

In one of the cases, Lt-Gen Kamoli is accused of treason.

He is accused alongside army officer, Captain Litekanyo Nyakane and politicians Mothetjoa Metsing and Selibe Mochoboroane.

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). In May 2020, he assumed a new post as Development Planning minister in the current Moeketsi Majoro-led governing coalition.

They are 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. Lt-Gen Kamoli had been fired from his post as army commander and Messrs Metsing and Mochoboroane had fallen out with Mr Thabane when they allegedly attempted to overthrow the latter’s government.

Messrs Metsing and Mochoboroane have a pending Constitutional Court application to have their trial put on hold until the completion of the multi-sector reforms in line with a 2018 agreement with the then government of Mr Thabane.

Lt-Gen Kamoli is also accused of the 2014 and 2015 murders of Lt-Gen Mahao and Police Sub-Inspector Mokheseng Ramahloko respectively.

The Mahao and Ramahloko families have expressed frustration at the failure of the trials to take off. They have accused the suspects of delaying tactics in the hope that a new government will take over and stop the trials.